Art Leonard Observations

Alliance Defending Freedom Asks Supreme Court to Intervene in West Virginia Transgender Sports Case

March 13, 2023

Alliance Defending Freedom, the conservative religious litigation group, representing as intervening defendant a cisgender girl who claims it is unfair to require her to compete in track and field against a transgender girl, applied to the Supreme Court to reverse an order by a three-judge panel of the 4^th Circuit Court of Appeals allowing B.P.J., a transgender girl, to continue competing while the court of appeals considers her appeal of an adverse ruling by the federal district court. State of West Virginia v. B.P.J., No. 22A800 (23-1078).

The actual defendants in the case are the State of West Virginia, its State Board of Education, the West Virginia Secondary School Activities Commission, and the state Education Superintendent. ADF’s Application, addressed to Chief Justice John G. Roberts, Jr., who receives such applications arising from courts within the 4^th Circuit, was docketed on March 13. Chief Justice Roberts ordered B.P.J. to respond by noon on March 20.

The Application was accompanied by two amicus briefs, from “67 Female Athletes, Coaches, Sports Officials, and Parents of Female Athletes” and from “Alabama, Arkansas, and 19 Other States.” ADF apparently acted quickly to round up support.

The 4^th Circuit’s February 22 Order, issued by a 2-1 vote of the panel, provided no explanation for its decision to reject District Judge Joseph Goodwin’s refusal to stay the Order that he had issued early in January, when he had concluded that B.P.J. was not likely to prevail on her claim that West Virginia’s Sports Act violated her federal constitutional and statutory rights. Goodwin issued an opinion on February 7 reiterating his refusal to stay his ruling, which prompted B.P.J. to seek quick relief from the 4^th Circuit before the spring track and field season commenced.

The ADF application is likely to draw the Supreme Court into one of the most hotly disputed issues in transgender law: whether federal law requires that transgender girls be treated as girls for purposes of athletic competition. According to ADF’s Application, 17 states have adopted these bans, and similar proposals are pending in more state legislatures.

The 2^nd Circuit Court of Appeals recently announced that it was taking up the same question by the full bench of that court (13 active judges) in relation to Connecticut’s policy of letting transgender girls compete, thus vacating a 3-judge panel decision that had upheld the dismissal of a challenge to that state’s policy that was brought by three cisgender girls who had been beaten in competition by transgender girls. The plaintiffs in that case argued that the state’s policy violated their Equal Protection and Title IX rights.

When Judge Goodwin first encountered B.P.J.’s lawsuit, filed by Lambda Legal and the ACLU, in the context of a pretrial motion for a preliminary injunction, he granted the preliminary injunction early in 2021, allowing B.P.J. to fulfil her wish upon beginning middle school to be able to participate in spring girls’ track and field events based on her gender identity rather than what the state would refer to as her “biological sex,” which it defines as “reproductive biology and genetics at birth.” She had identified as a girl since early childhood, but was told she would not be able to compete as a girl due to the recently enacted state law.

Judge Goodwin, Senior District Judge who was appointed by President Bill Clinton, narrowed his preliminary injunction to B.P.J. as an individual, reserving for later decision the question whether the state law is unlawful on its face. After refusing to dismiss B.P.J.’s complaint, and reviewing the voluminous record compiled through discovery, Judge Goodwin changed his mind and decided that for purposes of athletic competition transgender girls are not similarly situated with cisgender girls, and thus it was not unlawfully discriminatory for the state to exclude them from girls’ athletic competition. In that January 2023 ruling, he ordered the preliminary injunction dissolved and subsequently refused to “stay” that dissolution while B.P.J. appealed to the 4^th Circuit.

It is quite unusual for a court of appeals panel to issue an order without explanation to revive a preliminary injunction that had been ordered dissolved in a lengthy decision by the district court, and ADF played up this lack of explanation in its Application, suggesting that there was something suspect about it, as it was not accompanied by a detailed explanation of why two of the three panel judges disagreed with Judge Goodwin.

In order to issue a preliminary injunction against the application of a state law, a court has to find that the plaintiff’s challenge to the law is likely to succeed and to explain why, to justify upsetting the legal status quo established by the law. If the 4^th Circuit panel had added to their Order that they agreed with and incorporated by reference Judge Goodwin’s earlier explanation why a preliminary injunction was merited, ADF would not be in a position to make an argument that may be persuasive to the Supreme Court as providing a way to dispose of this Application without stating its own view on the merits of the case.

The 4^th Circuit has proved friendly in the past to the argument that excluding transgender students from equal access to all school programs and facilities violates their rights, most notably in its 2020 decision in Grimm v. Gloucester County School Board, in which it held that the Equal Protection Clause and Title IX of the Education Amendments of 1972 required a public high school to allow a transgender boy to use the boys’ restroom facilities. Ultimately, however, Judge Goodwin concluded that sports competition presented distinctly different issues, and that biological sex was relevant in this context because, he was convinced, allowing a transgender girl to compete in girls’ sports presented unfair competition to cisgender girls.

ADF drove these points home in its Application, asserting that every time B.P.J. competed, she was depriving a cisgender girl of an opportunity to compete, and every time she beat cisgender girls in competition, she was depriving them of the victories they deserved. ADF pointed to the legislative history of Title IX, which at the time was described as an effort by Congress to provide more opportunities for girls to participate in sports, arguing that letting transgender women compete was undermining the original goal of the statute.

ADF sharply contested the argument that the Supreme Court’s Bostock ruling from 2020, which interpreted Title VII of the Civil Rights Act of 1964 to make it unlawful for an employer to discharge an employee because of their transgender status, could be translated to Title IX without modification. ADF argued that a rule relevant to employee hiring and discharge was not appropriately applied to the issues in this case, especially noting that regulations under Title IX clearly allow for separate teams and competitions for boys and girls, based on a view that allowing “boys” to compete on girls’ teams would deprive girls of equal opportunity to engage in athletic competition.

B.P.J.’s argument is that a categorical exclusion is inappropriate, that each transgender student should be evaluated on an individual basis depending on the nature of their transition. ADF argued that this was a unworkable approach, that would mire school districts and courts in difficult and time-consuming determinations about whether a particular transgender girl should be allowed to compete. They also posed the disingenuous suggestion that any boy could just declare himself a girl to play on a girls’ team, a distortion of B.P.J.’s arguments.

In recent years, the Court has been increasingly deciding significant issues of law and policy in the so-called “shadow docket,” responding to motions and applications for relief from lower court decisions. These rulings are made without the full trappings of a plenary review, which would include full briefing and oral arguments, that accompanies a grant of certiorari and stretches out the process over a significant period of time. The “shadow-docket” rulings come quickly, and frequently without extensive written explanation.

ADF’s Application also couches its concerns in the language of federalism, urging the court to defer to the state legislature’s judgment in an area – regulation of public education – that is traditionally a state rather than a federal function. “This case implicates a question fraught with emotions and differing perspectives,” ADF writes. “The decision was the West Virginia Legislature’s to make. The end of this litigation will confirm that it made a valid one. In the meantime, the Court should set aside the Fourth Circuit’s unreasoned injunction and allow the State’s validly enacted law to go back into effect.”

Legal Issues | Tagged ACLU LGBT Rights Project, ACLU of West Virginia, ADF, Alliance Defending Freedom, B.P.J. v. State of West Virginia, Equal Protection Clause, Lambda Legal, scholastic sports competition, Senior District Judge Joseph Goodwin, Supreme Court Shadow Docket, Title IX of the Education Amendments of 1972, Transgender girls in sports, Transgender identity, West Virginia Sports Act | Comment

Ninth Circuit Denies En Banc Rehearing in Washington Conversion Therapy Case, Setting Up Possible Supreme Court Review

January 25, 2023

On January 23, the U.S. Court of Appeals for the 9^th Circuit announced denial of rehearing en banc in Tingley v. Ferguson, 47 F. 4^th 1055 (9^th Cir., September 6, 2022), in which a three judge panel, following 9^th Circuit precedent in Pickup v. Brown, 740 F.3d 1208 (9^th Cir. 2014), rejected a First Amendment free speech challenge to Washington’s statute prohibiting licensed health care providers from performing “sexual orientation change efforts” (informally referred to as conversion therapy) on minors. Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, represented Brian Tingley, a licensed Washington therapist, in challenging the law. The National Center for Lesbian Rights (NCLR) represented Equal Rights Washington, a political group, as intervenor-defendant in the case. The announcement and attendant dissenting opinions are published at 2023 WL 353213, 2023 U.S. App. LEXIS 1632.

District Judge Robert J. Bryan granted a motion to dismiss in 2021, see 557 F.Supp.3d 1131 (W.D. Wash.), in light of the 9th Circuit precedent of Pickup. A three-judge panel of Circuit Judges Ronald Gould, Kim Lane Wardlaw and Mark J. Bennett, affirmed, restating the legal analysis of the Pickup decision, which held that the law was regulating professional conduct, only incidentally affecting speech, in an opinion by Gould joined by Wardlaw (Clinton appointees) with a concurrence by Bennett (Trump appointee).

It takes a majority of the 29 active judges of the circuit to grant en banc review by an eleven-judge panel. In announcing the denial of en banc review, the court released two dissenting opinions. Senior Circuit Judge Diarmuid O’Scannlain, a Reagan appointee who couldn’t vote on the issue, nonetheless was moved to write about why he thought the 9th Circuit had to reconsider Pickup, and his dissent was joined by Circuit Judge Sandra Ikuta (George W. Bush appointee) and Circuit Judges Ryan Nelson and Lawrence VanDyke (Trump appointees). Circuit Judge Patrick Bumatay (Trump appointee) wrote a separate dissenting opinion.

O’Scannlain’s dissent argued that Pickup was no longer good law. In NIFLA v. Becerra, 138 S. Ct. 2361 (2018), a free speech case challenging California’s law requiring clinics providing reproductive health services to advise patrons about the availability of abortion providers, the Court had rejected the proposition that “professional speech” receives less First Amendment protection than other speech, and Justice Clarence Thomas, writing for the Court, specifically mentioned the Pickup decision as having erred on this point. O’Scannlain wrote that “the Supreme Court has rejected Pickup by name… And other circuits have rejected Pickup’s holding, concluding instead that therapeutic speech is – speech, entitled to some First Amendment protection.” He argued that “the panel’s defense of Pickup’s continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.” He also criticized the panel’s discussion of a “long tradition” of regulating professional conduct in the health care field as somehow supporting the law.

However, the panel had distinguished Pickup from NIFLA. In the California statute at issue in NIFLA, the state was not regulating “therapeutic speech,” but rather was requiring clinics to convey the government’s message about availability of services that these clinics – which were devoted to dissuading pregnant women from terminating their pregnancy – did not want to provide. Thus, it was compelled speech, in the view of the Court, and it violated the First Amendment for the government to compel the clinics to convey this message. This is distinguishable from the conversion therapy statutes, which restrict licensed therapists from providing the therapy – which incidentally involves speech, although some may go beyond speech in their therapeutic methods – but do not restrict them from discussing conversion therapy with their clients/patients, or require them to state anything in particular about it. The 3rd Circuit, evaluating New Jersey’s conversion therapy law in King v. Governor of New Jersey, 767 F.3d 216 (2014), differed from the 9th Circuit, holding that the law did raise free speech issues, but found that the state’s legislative findings support a legitimate interest to sustain the law. Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020), which was subsequently denied rehearing en banc, rejected Pickup and struck down two local government bans on conversion therapy in Florida. Thus, the circuit split on the free speech issue.

Judge Bumatay wrote separately to assert that “conversion therapy is often grounded in religious faith,” and that Tingley had alleged that “his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings.” Bumatay developed this theme to conclude that this was actually a hybrid rights case, melding together free speech and free exercise of religion, which he insisted would require at least heightened scrutiny rather than the rationality approach taken by the panel in this case (and the panel in Pickup). He would vote to rehear the case en banc in order to incorporate this additional consideration in evaluating whether Washington State had a strong enough justification to support overriding the therapist’s religious convictions. He did concede that it is possible the court could find that the law survived heightened scrutiny depending on the strength of Washington’s case.

ADF brings cases challenging LGBTQ rights laws as part of a broad agenda to get the courts to condemn such laws, usually on religious freedom grounds. Since it is a test case litigator, a cert petition is the next likely development in this litigation. Although the panel majority strived to distinguish the NIFLA case, Justice Thomas’s dicta expressing disapproval of Pickup may stimulate the four votes on the Court necessary to grant certiorari. And the combination of free speech and free exercise suggested by Judge Bumatay is likely to appeal to the conservative majority on the current Court, which could spell the end of laws banning conversion therapy in the United States – at least to the extent that therapy is carried out solely through speech, as the plaintiff therapists have argued in challenging these laws.

Given the timing of all this, a cert petition filed in February or March could not be granted in time for a hearing to take place during the current term of the Court, but Tingley v. Ferguson may loom as a significant LGBT-related case on the Court’s October 2023 calendar.

Legal Issues | Tagged 1st Amendmnet, Circuit Judge Kim Lane Wardlaw, Circuit Judge Mark J. Bennett, Circuit Judge Patrick Bumatay, Circuit Judge Ronald Gould, conversion therapy, District Judge Robert J. Bryan, En Banc Review, First Amendment, free exercise of religion, freedom of speech, Justice Clarence Thomas, King v. Governor of New Jersey, NIFLA v. Becerra, Otto v. City of Boca Raton, Pickup v. Brown, Senior Circuit Judge Diarmuid O'Scannlain, sexual orientation change efforts, SOCE, therapeutic speech, Tingley v. Ferguson, US Court of Appeals for the 9th Circuit | Comment

Federal Court Dismisses Challenge to Religious Exemptions under Title IX

January 15, 2023

Title IX of the Education Amendments of 1972 prohibits educational programs or activities that receive federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. Title IX includes a provision exempting from this anti-discrimination rule any educational institution that “is controlled by a religious organization” with “religious tenets” inconsistent with complying with Title IX.

In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, a decision interpreting Title VII of the Civil Rights Act of 1964, that it is impossible to discriminate on the basis of sexual orientation or transgender status without discriminating “because of sex.” In 2021, early in the Biden administration, the U.S. Department of Education announced that it would apply Bostock’s reasoning to interpret Title IX, and would accept complaints of discrimination from students of educational institutions that are subject to Title IX because they receive federal funds. In 2020, the last year of the Trump administration, the Education Department adopted a regulation making it easier for religious schools to benefit from the exemption language in Title IX. Prior to these new regulations, schools that wanted to claim the exemption to avoid DoE investigations had to file a written request to DoE to be determined to qualify for the exemption. The 2020 regulations made such written applications optional, and said that religious educational institutions could raise the exemption to get an investigation dismissed without having made such a written request.

Responding to these developments, an organization called the Religious Exemption Accountability Project (REAP) was formed to bring a lawsuit on behalf of LGBTQ people who have discrimination claims against religious schools, seeking a declaration that the statutory exemption is unconstitutional and that the 2020 Trump administration regulation violates the Administrative Procedure Act. The lawsuit against the Department of Education and the Assistant Secretary for Civil Rights, which was filed in the U.S. District Court in Oregon in March 2021, was ultimately expanded to include claims by forty LGBTQ+ individuals. The Council for Christian Colleges & Universities and some other organizations intervened to defend the exemptions that they enjoy under Title IX.

The essence of REAP’s claim is that it is unconstitutional for the government to provide funding to religious colleges and universities that discriminate on the basis of sexual orientation or gender identity.

On January 12, 2023, U.S. District Judge Ann Aiken granted a motion by the defendants and the intervenors to dismiss the lawsuit. Hunter v. U.S. Department of Education, 2023 WL 172199, 2023 U.S. Dist. LEXIS 5745 (D. Ore., 1/12/23).

Although Judge Aiken rejected the defendants’ argument that the plaintiffs lacked standing to bring their constitutional claims against DoE, which enforces Title IX, she accepted the defendants’ argument that the plaintiffs lack standing to assert their Administrative Procedure Act claim.

More to the point, however, Judge Aiken found that the Supreme Court has upheld statutory exemptions from compliance with federal laws by religious organizations, virtually foreclosing the Equal Protection and First Amendment claims asserted by the plaintiffs. “Here, Plaintiffs have provided voluminous allegations going toward the element of disparate impact – the first hurdle to mounting an equal protection claim,” wrote Judge Aiken. “However, Plaintiffs have submitted no allegations of discriminatory motivation on the part of those enacting the religious exemption.”

This is significant because the Supreme Court has held that the Equal Protection requirement extends only to intentional discrimination by the government. “To the contrary,” wrote Aiken, “Plaintiffs argue that when Congress enacted Title IX [in 1972], protections against sexual and gender minorities – were ‘of no concern.’”

“Plaintiffs provide no evidence and supply no allegations … for the Court to consider and evaluate whether Congress was motivated in part by a discriminatory purpose when it enacted the religious exemption. The Court cannot conclude that Plaintiffs’ assertion that ‘Congress enacted the religious exemption to permit discrimination based on sex, sexual orientation, and gender identity’ is sufficient.” She deemed such statements to be “conclusory” and “therefore not entitled to an assumption of truth.”

The judge pointed out that the Ninth Circuit Court of Appeals, whose jurisdiction covers Oregon, has ruled that statutes that are alleged to discriminate based on sexual orientation or gender identity are subject to “heightened scrutiny,” which means that the challenge will fail if the statute is found to “serve important government objectives” and “the discriminatory means employed are substantially related to the achievement of those objectives.”

“Plaintiffs have not alleged how the religious exemption fails intermediate scrutiny,” wrote Judge Aiken. “Defendants point out that the Ninth Circuit has recognized ‘that free exercise of religion and conscience is undoubtedly, fundamentally important.’ Exempting religious controlled educational institutions from Title IX – and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization — is substantially related to the government’s objective of accommodating religious exercise.”

The judge concluded that the plaintiffs’ substantive due process claim was too vague, commenting that “plaintiffs invoke only a vague reference to ‘due process’ violations, and do not set forth the elements of a substantive due process claim or facts supporting such a claim.”

Perhaps the strongest arguments for the plaintiffs would be their Establishment Clause argument – that granting the exemption shows government favoritism for religions that discriminate on the basis of sex, sexual orientation, or gender identity, but the court found this argument to be foreclosed by the Supreme Court’s decisions upholding various religious exemptions for the purpose of accommodating an employer’s religious free exercise, including a provision in Title VII that exempts religious employers from the statute’s general prohibition on employment discrimination on the basis of religion.

The court concluded that the plaintiffs had not identified “legal authority that would distinguish this case from the facts and law at issue” in the Title VII cases. Furthermore, she wrote, “Though Plaintiffs have much to say about Defendants [implementing the exclusion provision], Plaintiffs have failed to demonstrate any impermissible purpose Congress had in enacting the religious exemption,” especially in light of the Supreme Court’s decisions upholding religious exemptions under other statutes. Indeed, the court found, by exempting religious schools from Title IX, Congress could be said to be avoiding “excessive entanglement” between the government and religion by eliminating DoE investigations of discrimination claims against religious schools.

The court also rejected the plaintiffs’ argument that the religious school exemption somehow violated the First Amendment free speech rights of students by creating a “chilling effect” on student speech. She found that the statute “contains no reference to speech or viewpoint… Plaintiffs’ allegation that Defendants lack a compelling governmental interest in ‘funding private educational institutions that restrict First Amendment rights…’ asserts that it is the ‘institutions that restrict’ Plaintiffs’ rights. In so alleging,” she continued, “Plaintiffs fail to supply any facts connecting Defendants’ provision of ‘funding’ to educational institutions with a free speech violation. As such, Plaintiffs have not pled ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

Finally, the court rejected the plaintiffs’ argument that the religious exemption violated their own right to free exercise of their religious beliefs in violation of the Religious Freedom Restoration Act. “The text of RFRA is clear that government granting exemptions does not constitute a violation, unless impermissible under Establishment Clause principles,” she wrote.

REAP must now decide whether to appeal this ruling to the Ninth Circuit. In light of the Ninth Circuit precedents on which the court relied, winning an appeal is likely to be a long shot.

Judge Aiken was appointed to the district court by President Bill Clinton in 1998.

Legal Issues | Tagged equal protection, free exercise of religion, gender identity discrimination, Hunter v. U.S. Department of Education, Religious Exemption Accountability Project, religious school exemption under Title IX, sexual orientation, sexual orientation discrimination, Title IX religious exemption, Title IX sex, transgender discrimination, U.S. District Judge Ann Aiken | Comment

Federal Court Rules “Catholic Hospital” Owned by University of Maryland Medical Systems Can’t Refuse Gender-Affirming Surgery for Transgender Patients

January 9, 2023

Consolidation in the health care industry has resulted in some odd situations, as shown by a federal court ruling on January 6 that a “Catholic Hospital” that appears to be owned by a state university system must comply with the anti-discrimination requirements of the Affordable Care Act (ACA), which the court concluded requires the hospital to perform hysterectomies for transgender men seeking the operation for purposes of gender transition, because it performs hysterectomies for cisgender women as prescribed treatment for their medical conditions. Hammons v. University of Maryland Medical System Corporation, 2023 WL 121741, 2023 U.S. Dist. LEXIS 2896 (D. Md., Jan. 6, 2023).

Jesse Hammons, identified as female at birth, was diagnosed with gender dysphoria for which his doctor prescribed a hysterectomy (removal of the uterus) as part of his gender transition. He was scheduled for the procedure to take place at University of Maryland St. Joseph Medical Center, where his doctor scheduled the operation for January 6, 2020. When his doctor conferred with St. Joseph’s chief medical officer about the impending surgery a few weeks ahead of the scheduled date, he was told, “No, we cannot do transgender surgery at St. Joseph.” The hospital cancelled the procedure.

The contract in which University of Maryland Medical Systems purchased St. Joseph Hospital from a Catholic organization in 2012 provides that UMMS must operate St. Joseph “consistent with Catholic values” as set forth in the Ethical and Religious Directives for Catholic Health Services (ERD) promulgated by the U.S. Conference of Catholic Bishops. The Board of St. Joseph formally adopted the ERD as part of its operational policies. Also, UMMS made an agreement with the Archbishop of Baltimore that required St. Joseph Medical Center to comply with the ERD. The ERD categorically prohibits the performance of gender transition treatment at St. Joseph.

While University of Maryland is a state institution subject to constitutional non-discrimination requirements, UMMS argues that it is separately incorporated as a health care institution and is not part of the University of Maryland. However, it is a recipient of federal money through the Medicare and Medicaid programs, so it is also subject to the non-discrimination requirements under Section 1557 of the Affordable Care Act, which imposes a ban on discrimination on grounds prohibited by a list of federal laws, including Title IX of the Education Amendments of 1972, which forbids sex discrimination. Maryland is within the jurisdiction of the federal 4^th Circuit courts, which have ruled that Title IX forbids discrimination because of gender identity, consistent with the U.S. Supreme Court’s 2020 Bostock decision.

Mr. Hammons eventually got his hysterectomy performed at another hospital many months later, but decided to sue the University of Maryland, its Health System, and St. Joseph’s for violation of the First and Fourteenth Amendments and unlawful discrimination under the Affordable Care Act, seeking damages for his economic and emotional injuries. Hammons is represented by the ACLU and cooperating attorneys from the firm of Patterson Belknap.

The defendants moved to dismiss the constitutional claims, arguing that as state entities, they were immune from suit in federal court. Alternatively, the claimed that if they were regarded as private entities, they enjoyed ecclesiastical immunity as well as protection under the Religious Freedom Restoration Act.

The Supreme Court has embraced the view that the concept of “sovereign immunity” prohibits the states from being sued on federal claims in federal courts unless they have agreed to “waive” their immunity. Senior U.S. District Judge Deborah Chasanow concluded that this doctrine required her to dismiss the constitutional claims against UM, UMMS and St. Joseph’s. She appears to have considered them to be state actors.

On the other hand, as she found in her January 6 ruling, under the Affordable Care Act, a condition of a health care provider receiving federal money is their agreement to waive any sovereign immunity claim they might have as to enforcement of the ACA against them in federal court.

This set up interesting paradoxes in this case. By contract, UMMS is required to operate St. Joseph according to the ERD, which bans the performance of any procedure that terminates reproductive capacity unless it is required for medical purposes. St. Joseph argued that UMMS, not St. Joseph, was the recipient of federal funding, so St. Joseph should not be subject to the ACA requirement, but the court found that as a wholly-owned unit of UMMS, St. Joseph was a part of the federal funding recipient entity. Only fair, since St. Joseph, although operating on “Catholic principles,” was found to enjoy sovereign immunity from being sued in federal court on the constitutional claims because the court considered it to be part of the University of Maryland — which it claims it is not.

St. Joseph also argued that it had a valid defense under the Religious Freedom Restoration Act (RFRA), since being required to perform the procedure for Mr. Hammons would substantially burden its free exercise of religion. But wait, can an entity that has been found by the court to be a state actor with sovereign immunity against constitutional claims make a free exercise of religion claim? Which raises the further question whether would violate the Establishment Clause of the First Amendment for a state university to agree to operate one of its wholly owned medical centers based on religious principles. Hammons raised this issue in his complaint, but the judge avoided it by focusing on court decisions limiting the application of RFRA to cases brought by the government.

Although the Supreme Court hasn’t spoken to the issue, most (but not all) federal courts faced with the question have determined that RFRA applies only when the federal government is the plaintiff seeking to enforce a federal statute that burdens free exercise of religion by the defendant. In this case, the court has found (perhaps mistakenly?) that a unit of the state government (University of Maryland St. Joseph Medical Center) is the defendant. The plaintiff, Mr. Hammons, is a private citizen. Although the 4^th Circuit Court of Appeals hasn’t spoken to the issue, several trial courts within the district have sided with those courts who find RFRA inapplicable in litigation brought by a private citizen to enforce a claim under a federal statute. And, UMMS’s argument that it and St. Joseph are private, non-governmental actors, would make this a lawsuit between private parties with no government involvement. Judge Chasanow concluded that St. Joseph could not raise a RFRA defense, because it was not being sued by the federal government. (One might just as well say that an entity wholly owned and operated by a government agency may not raise a RFRA defense, because both the federal and the state governments are prohibited by the 1^st Amendment from “practicing” a religion under the Establishment Clause, but this would be irrelevant if one accepts UMMS’s argument contention that it is not part of the public University whose name it shares.)

Getting back to the easier issue in the case, Judge Chasanow had no trouble determining that refusing a hysterectomy to Mr. Hammons was discrimination in violation of the ACA. The 4^th Circuit ruled in 2020, after the Supreme Court’s Bostock decision, that sex discrimination prohibited by Title IX includes discrimination because of transgender status. Because the ACA forbids health care providers from discriminating on grounds prohibited by Title IX, St. Joseph may not discriminate because of transgender status to deny Hammons his hysterectomy unless it otherwise enjoys a religious exemption, which it was claiming as a defense.

St. Joseph tried to argue that it was not singling out transgender people, but rather applying a general principle that it would not perform operations to terminate reproductive capacity except for medical reasons. But it is now past the day when defendants can credibly argue that gender dysphoria is not a medical reason to perform a hysterectomy. Numerous courts have now rejected the claim that insurance policy provisions excluding coverage for “cosmetic procedures” can be used to block individuals from getting coverage for hysterectomies that are performed for the purpose of gender transition, and numerous federal courts have concluded, in the context of lawsuits by transgender prisoners seeking health care, that gender dysphoria is a serious medical condition.

The bottom line, of course, was that this scheduled procedure was cancelled explicitly because the operation was for the purpose of gender transition, so it could not logically be treated as other than discrimination due to Hammons’ transgender status, bringing it within the scope of the sex discrimination ban, assuming that Section 1557 applies to St. Joseph. (This is another point of significant contention, because Title IX is the source of the ACA non-discrimination requirement under Section 1557, and Title IX has a statutory exemption for religious educational institutions. Some have argued that this exemption should carry over to the ACA as well and cover religious health care institutions, a point of contention between the Trump Administration and the Biden Administration with dueling regulatory language.)

Senior Judge Chasanow was appointed by President Bill Clinton.

Legal Issues | Tagged 4th Circuit Court of Appeals, ACLU, Affordable Care Act Section 1557, Catholic hospital, discrimination because of gender identity, Establishment Clause, Free Exercise Clause, gender identity, gender-affirming care, Hammons v. University of Maryland Medical System Corporation, hysterectomy for gender transition, Maryland, transgender discrimination, transgender men, transgender status, transgender women, transsexual, U.S. District Judge Deborah Chasanow, US District Court | Comment

Federal Court Says West Virginia Can Bar Transgender Girls from Girls’ Sports Teams

A federal judge ruled on January 5 that a West Virginia law forbidding transgender girls from competing on girls’ scholastic sports teams does not violate the constitution or the federal law banning sex discrimination by educational institutions. B.P.J. v. West Virginia State Board of Education, 2023 WL 111875, 2023 U.S. Dist. LEXIS 1820 (S.D.W.Va., Jan. 5, 2023).

West Virginia enacted the “Save Women’s Sports Bill” in 2021. The bill says that “inherent differences” between “biological males and females” justify having separate athletic teams for “biological males” and “biological females,” and that regardless of gender identity, for purposes of sports competition transgender females are biological males.

Becky, the plaintiff in B.P.J. v. West Virginia Board of Education, is now eleven years old, She was identified as male at birth, but “began expressing her female gender identity when she was three years old,” according to the complaint filed on her behalf by Lambda Legal and the American Civil Liberties Union. “By the end of third grade, B.P.J. expressed herself fully – both at home and otherwise – as a girl,” wrote U.S. District Judge Joseph R. Goodwin. She was diagnosed with gender dysphoria in 2019 and began taking puberty blocking medications at the first signs of puberty, so she has “not undergone endogenous male puberty,” wrote the judge.

When she was preparing to enter middle school, she wanted to try out for the girls’ cross-country and track teams. Her mother asked the school to let her participate, but they told her that it would depend on what happened with the “Save Women’s Sports Bill,” which was then being considered by the state legislature. When the bill passed, B.P.J. was informed that she would not be permitted to try out for the girls’ team. She filed her lawsuit on May 26, 2021, claiming a violation of Equal Protection under the 14^th Amendment and of Title IX of the Education Amendments of 1972 which bans sex discrimination.

She immediately sought a preliminary injunction so she could try out for the team while the case was pending. The decision whether to grant a preliminary injunction requires the court to determine whether Becky had a likelihood of success on the merits of her “as-applied” challenge to the law. Judge Goodwin granted the preliminary injunction, but shortly thereafter granted a motion by a cisgender female college athlete, represented by Alliance Defending Freedom (ADF), to intervene to defend the law from the perspective of a “biological woman” who might have to compete with transgender “biological men.”

Despite issuing the preliminary injunction, which allowed B.P.J. to try out for the girls’ team for the 2021-22 season, Judge Goodwin changed his mind about the merits, ruling for the state and the intervenor on January 5.

Before explaining his ruling, Judge Goodwin noted that B.P.J. was not arguing that the West Virginia law was unconstitutional under the “animus” doctrine, which holds that a legislature cannot pass a law that discriminates against a disfavored group out of animus against that group. She also was not challenging a policy of having separate teams for boys and girls. Instead, she was arguing that she was “similarly situated” to cisgender girls for all relevant purposes and thus should be entitled to be treated the same as them play women’s sports.

Judge Goodwin found that the law should be tested under the “intermediate scrutiny” standard that some courts have adopted to evaluate transgender discrimination claims. Under this standard, the state can successfully defend a discriminatory law by showing that it significantly advances an important state interest. He treated the issue before the court as whether the state could define sex as “biological sex” and treat B.P.J.. as male for purposes of sports competition.

“Whether a person has male or female sex chromosomes determines many of the physical characteristics relevant to athletic performance,” wrote Goodwin. “While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes. This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes. Given B.P.J.’s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females.”

Although he conceded that by taking puberty blockers, B.P.J. may have avoided the physical advantage that “biological males,” on average, enjoy, he wrote that “other transgender girls may not take those medications” for a variety of reasons, including realizing their female gender identity after going through some or all of puberty or having difficulty in accessing the treatment. “And,” he wrote, “as evidenced by the thousands of pages filed by the parties in this case, there is much debate over whether and to what extent hormone therapies after puberty can reduce a transgender girl’s athletic advantage over cisgender girls.” Indeed, he found that “the social, medical, and physical transition of each transgender person is unique” but “the fact is… that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males.”

The oddity here, is that Goodwin’s analysis treats this “as-applied” challenge as if it is a “facial challenge.” The question B.P.J. sought to pose is whether it violated her rights to apply a categorical exclusion of all “biological males” to her, rather than to have a policy of treating each transitioning person as unique to be evaluated based on their individual history. Because she identified as female very early, took puberty blocking medications, and has not gone through male puberty, she argues that in terms of physical capabilities, she is more like a cisgender girls of her age than a biological boy of her age.

But the judge was convinced by ADF’s argument on behalf of the cisgender intervenor, who asserted that “some boys run slower than the average girl and some boys have circulating testosterone levels similar to the average girl because of medical conditions or medical interventions,” but B.P.J. has not argued that those boys should be allowed to play on girls’ teams. “This is inconsistent with her argument that the availability of hormone therapies makes transgender girls similarly situated to cisgender girls,” wrote Goodwin.

“In fact,” he wrote, “after reviewing all of the evidence in the record, including B.P.J.’s telling responses to requests for admission, it appears that B.P.J. really argued that transgender girls are similarly situated to cisgender girls for purposes of athletics at the moment they verbalize their transgender status, regardless of their hormone levels.” The lack of an actual quotation of a statement by B.P.J. to this effect in the court’s opinion causes one to doubt that she was making such an argument, however.

But Goodwin concluded that “the legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females.” As such, he decided that it survives the heightened scrutiny test.

Turning to Title IX, Goodwin reached the same result. “There is no serious debate that Title IX’s endorsement of sex separation in sports refers to biological sex,” he wrote. Since he had already found in his Equal Protection analysis that “transgender girls are biologically male” and thus, on average, advantaged over cisgender girls in athletic competition, he found that the West Virginia policy was fully consistent with Congress’s intent in Title IX to afford equal opportunity for female students to compete in scholastic athletics.

“I have no doubt that H.B. 3393 aimed to politicize participation in school athletics for transgender students,” wrote the judge. “Nevertheless, there is not a sufficient record of legislative animus.” In other words, he concluded that the law was not shown by evidence to be the product of bias against transgender girls, but rather was motivated by the legislature’s desire to protect cisgender girls from what the legislature considered to be unfair competition from boys.

An appeal of Judge Goodwin’s ruling would go to the U.S. Court of Appeals for the 4th Circuit, which has yet to weigh in on this issue.

Judge Goodwin was appointed by President Bill Clinton in 1995.

Legal Issues | Tagged ACLU transgender rights, Alliance Defending Freedom ADF, B.P.J. v. West Virginina Board of Education, biological boys, biological girls, equal protection, gender identity discrimination, Gender Transition, heightened scrutiny, Lambda Legal transgender rights, puberty blockers, Save Women's Sports Bill, transgender equal protection claim, transgender sports participation, U.S. District Judge Joseph Goodwin | Comment

Eleventh Circuit En Banc Holds Transgender Boy Not Entitled to Use Boys’ Restroom at Florida High School

January 1, 2023

Ruling in Adams v. School Board of St. Johns County, Florida, 2022 WL 18003879, 2022 U.S. App. LEXIS 35962 (Dec. 30, 2022), a case that could have been dismissed as moot if U.S. District Judge Timothy Corrigan (M.D. Fla.) had not awarded $1,000 in damages to Drew Adams in 2018, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, voted 7-4 to reverse the district court and two vacated 2-1 opinions by a three-judge panel and hold that denying Adams, a transgender boy, access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972. The 11th Circuit’s ruling makes a binding precedent for the federal courts in Florida, Alabama and Georgia.

All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights. The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented. The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting. The only Republican appointee to vote in favor of Drew Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.

Circuit Judge Barbara Lagoa’s opinion for the court parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the 4th Circuit (Grimm v. Gloucester County School Board, 972 F.3d 586 (4^th Cir. 2020) and the 7th Circuit (Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F. 3d 1034 (7^th Cir. 2017). Lambda Legal, which is representing Drew Adams, has a difficult strategic decision to make, since the split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.

Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age. When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident for some time until two girls complained to the school administration. No boys had ever complained about Adams using the boys’ restrooms. Adams was then instructed that the only restrooms he could use were single-user gender neutral restrooms or the girls’ restrooms.

The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistently with their gender identity except for the use of single-sex facilities. As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district. Thus, Adams, who enrolled in the 4^th grade, would be treated as a girl for these purposes, and the district restricted the use of restrooms – the point of contention in this case – on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.

Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male. But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.

During the trial, it was established that if a student who was identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male. Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but was actually based on the sex identified on legal documents at the time they enrolled in the school district. And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia. There was also unrebutted expert testimony that Adams should be considered a biological male.

Adams filed suit in June 2017 in the Middle District of Florida. At the time, he was a “rising junior” at Nease. The trial was held in December 2018, resulting in Judge Corrigan’s 2018 decision, 318 F. Supp. 3^rd 1293. Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights. By then, case law in the 11th Circuit had long since recognized – in Glenn v. Brumby, 663 F.3d. 1312 (2011), a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.” The district judge concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys. The judge concluded based on the trial record that Adams was a boy who was entitled to use facilities intended for boys. Judge Corrigan also found a violation of Title IX, rejecting the school district’s argument that Title IX regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful. He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school and awarded him $1,000 in damages. The district promptly appealed to the 11th Circuit.

A three-judge panel voted 2-1 in August 2020, 968 F.3d 1286, to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds. The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling.

In a July 2021 decision, again 2-1, 3 F.4^th 1299, the same panel affirmed Judge Corrigan’s ruling but only on constitutional grounds, with the majority apparently hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity. But Pryor blocked the mandate again, and a majority of the active judges on the 11^th Circuit voted to vacate the panel decisions and reconsider the case by the full court, which then consisted of 12 judges. Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an eleven-judge bench convened to reconsider the case.

As Adams was a “rising junior” when he filed this lawsuit in June 2017, he was no longer a student at Nease High School when the en banc case was argued, and the issue of the injunction is effectively moot. Judge Corrigan’s 2018 decision had limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender students and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students. However, since the judge awarded Adams damages, the school district’s appeal is not moot.

Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.” The dissenting opinions point out that this is not really the question before the court, because the school district’s policy is based on sex as identified on enrollment papers, not “biological sex identified at birth,” and, more fundamentally, Adams is not challenging the right of the school district to maintain single-sex multi-user bathrooms. Rather, he is arguing that as a transgender boy, recognized as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy. Adams, in his state of transition, claims to be entitled to be treated the same as cisgender boys.

The underlying basis of Judge Lagoa’s opinion, of course, is that it is an article of faith among most Republican conservatives — the “party line,” as it were – that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician. This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using the surname “Adams.” Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissenting opinion, refers to Adams by pronouns consistent with his gender identity.

As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly-situated people. As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom. The majority of the court holds that there is no discrimination on the basis of sex and thus no equal protection violation. They also reject a a disparate impact theory, observing that equal protection is limited to intentional discrimination. They do accept, based on 11th Circuit precedent, that if there was discrimination, it would be subject to “heightened scrutiny,” but they find that the school district’s policy would survive that test based on the district’s concern for the privacy interests of the cisgender boys who don’t want a “biological girl” present in their bathrooms. They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also the contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases, such as Grimm and Whitaker.

Turning to Title IX, the court rejects the three-judge panel’s application of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to Title IX. In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964. This was because, the Court ruled, it is impossible to discriminate because of transgender status without discriminating because of sex. The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, such asTitle IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.

It is true that in the Bostock decision, Justice Neil Gorsuch, writing for the Court, asserted that the Court was deciding only the issue before it – whether a person discharged because they are gay or transgender can bring a discrimination claim under Title VII – and was not deciding anything about bathrooms or other statutes. But the logic of that decision has struck many lower federal courts, as well as state courts interpreting their own civil rights laws – as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination. The dissenters note and cite the relevant cases.

Judge Lagoa also found that because Title IX is a spending clause case (i.e., a case enacted by Congress to place conditions on the receipt of federal funding by educational institutions), the school district would have to have been on notice that accepting federal funding would obligate it to provide restroom access according to gender identity to transgender students, and the court found that this requirement was not satisfied, thus insulating the school district from Adams’s damage claim.

In addition to writing the opinion for the court, Judge Lagoa wrote a separate concurring opinion to focus on an issue not properly before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition. This separate opinion is totally unwarranted and inappropriate, first because the judge already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.

The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly. Judge Wilson emphasizes that the court’s narrow view of “biological sex” fails to take account of knowledge about divergent sexual identities, being so crudely reductionist that it creates all kinds of interpretive problems. How would the school district deal with an “intersex” student, for example? Judge Pryor’s dissent, the lengthiest, picks up from the detailed panel opinions by Judge Martin and points out the blatant fallacies strewn through Judge Lagoa’s opinion.

Legal Issues | Tagged 11th Circuit, 14th Amendment, Adams v. School Board of St. Johns County, bathroom wars, Circuit Judge Beverly Martin, Circuit Judge Charles Wilson, Circuit Judge Jill Pryor, Circuit Judge Lagoa, Circuit Judge Robin Rosenbaum, Circuit Judge William Pryor, District Judge Corrigan, Drew Adams, equal protection and gender identity, equal protection and transgender, gender identity discrimination, high school restrooms, Lambda Legal, Nease High School, Obama judges, restroom policies, sex discrimination in education, St. Johns County Florida Board of Education, Title IX of Education Amendments of 1972, transgender bathroom cases, transgender boys, Trump judges, U.S. Court of Appeals | Comment

Alliance Defending Freedom Loses Appeal in Transgender High School Athletics Case

December 19, 2022

A unanimous three-judge panel of the New York City-based U.S. Court of Appeals for the 2^nd Circuit has rejected an appeal by the conservative religious litigation group Alliance Defending Freedom (ADF) from a ruling by Senior U.S. District Judge Robert N. Chatigny, who last year had rejected a challenge to the Connecticut Interscholastic Athletic Conference (CIAC) policy of allowing transgender students to participate in high school athletic competitions consistent with their gender identity.

The December 16 opinion for the 2^nd Circuit panel in Soule v. Connecticut Association of Schools, 2022 U.S. App. LEXIS 34791, 2022 WL 17724715, by Judge Denny Chin found in agreement with Judge Chatigny that the plaintiffs (four cisgender women who competed on their high school track teams in CIAC-sponsored competition) lacked standing for the injunctive relief they were seeking, and that their claim for damages was barred because the defendants were not on notice when they accepted federal funding that their transgender participation policy would violate Title IX of the Education Amendments of 1972.

Indeed, the court found that Title IX most likely has the opposite effect, requiring schools to allow transgender students to compete consistent with their gender identity. ADF, claiming in a press release that the court “got it wrong” and that it was discriminatory for girls to compete against “males” in athletics, announced that it was considering “all options”, which could include a possible appeal, either requesting n banc review by the 2^nd Circuit or requesting the Supreme Court to hear the case. (ADF routinely calls transgender girls “boys” or “males” in its activities attacking affirmative transgender rights policies.)

The plaintiffs – Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti – were high school track competitors who claimed that allowing two transgender girls – Andraya Yearwood and Terry Miller – to compete with them in CIAC-sponsored matches unfairly discriminated against plaintiffs on the basis of their sex. Yearwood and Miller finished ahead of each of the plaintiffs in various track events during 2019 competition, although there were also events in which one or more of the plaintiffs finished ahead of the transgender girls.

The plaintiffs claimed that the CIAC policy violates Title IX, which forbids schools that receive federal funding from denying “equal educational opportunity on the basis of sex.” Title IX provided the impetus for school programs to significantly increase opportunities for girls to participate in athletics since it was passed in 1972. More recently, it has been interpreted by many (but not all) federal courts to prohibit discrimination because of gender identity. This interpretation was bolstered in June 2020 when the U.S. Supreme Court ruled in Bostock v. Clayton County, 140 S. Ct. 1731, that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” extends to claims of discrimination because of “transgender status.” Federal courts have generally looked to Title VII interpretations of “discrimination because of sex” when interpreting Title IX, despite slight variations in the wording of the statutes (“because of sex” versus “on the basis of sex”).

The plaintiffs alleged that the CIAC policy “is now regularly resulting in boys displacing girls in competitive track events in Connecticut,” that “students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born male.” They claimed a “direct violation” of Title IX.

But all the plaintiffs were able to compete, and in the entire state of Connecticut there were only two transgender girls with whom they were competing. Furthermore, by the time their suit was filed and Judge Chatigny ruled on the defendants’ motions to dismiss the case, both of the transgender girls (who were permitted to intervene as defendants represented by the ACLU) had graduated and there were no transgender girls participating in CIAC-sponsored meets. The plaintiffs had asked the court to order the CIAC to bar CIAC from enforcing its policy and to delete the transgender girls from the records of the matches in which they had competed, which would elevate one or more of the plaintiffs to higher standing in some of those matches.

The Connecticut Commission on Human Rights and Opportunities also intervened as a defendant in support of the CIAC policy. Connecticut’s human rights law forbids gender identity discrimination.

Judge Chatigny concluded that the plaintiffs lacked standing for the relief they were seeking. Some of their claims were deemed mooted by the passage of time and subsequent events. By the time the motion to be dismiss was decided, the plaintiffs, who were near graduation from high school, were no longer affected by the policy, so lacked standing to seek an injunction against its enforcement. Also, the plaintiffs alleged that their athletic records were crucial to their ability to gain college admissions and subsequent employment, but by the time the Court of Appeals was considering this appeal, the plaintiffs had all been admitted to college and the impact of their final standing in CIAC competitions on their employment opportunities was deemed too speculative to support a claim of actual injury, which is necessary for the relief they were seeking. The Court of Appeals agreed with Judge Chatigny and affirmed the denial of injunctive relief.

As to the plaintiffs’ damage claims, under a 1981 Supreme Court precedent, Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, a damage claim under a statute that imposes a federal non-discrimination requirement on a defendant because the defendant is the recipient of federal funds may not be made unless the funding recipient was on notice when they decided to accept the funding about the specific non-discrimination obligation to which they were subjecting themselves by accepting the money.

The burden is on the plaintiff to show that defendants were “on notice” that by letting transgender girls compete, they were violating the Title IX rights of cisgender girls. “We conclude that only the opposite has been shown here,” wrote Judge Chin for the Court of Appeals.

The judge first noted that “guidance” from the Department of Education (DOE) under Title IX “has fluctuated with the changes in presidential administrations.” In 2016, during the Obama Administration, DOE advised schools, based on the Equal Employment Opportunity’s decision that Title VII covered gender identity discrimination, that schools could not discriminate against transgender students, and this required allowing them to participate in school athletics. In 2017, with the Trump Administration, that guidance was withdrawn by DOE on the ground that it needed to be “considered more completely.” In 2020, DOE sent the CIAC a letter of “impending enforcement action” reacting to publicity about this lawsuit, interpreting Title IX to require that gender-specific sports teams be separated based on “biological sex,” but that was withdrawn by the new Biden Administration in February 2021 before any action was taken by DOE against the CIAC.

Perhaps more significantly, Judge Chin pointed out, although this precise issue has not yet been decided by other courts of appeals in the sports context, there are have been numerous court of appeals decisions in other circuits, many of which were denied review by the Supreme Court, holding that schools covered by Title IX cannot discriminate against transgender students, and cases holding that allowing transgender students to use restrooms consistent with their gender identity do not violate the Title IX rights of cisgender students.

“Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender specific sports teams,” wrote Chin, “such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the Policy violates Title IX.” The court also rejected ADF’s argument that the plaintiffs were entitled to an exception from the Pennhurst “notice” rule because defendants “intentionally” discriminated against the plaintiffs, commenting that “the Policy could not be considered ‘intentional conduct that violates the clear terms of’ Title IX, given Bostock and the decisions from other Courts of Appeals. Thus the ‘intentional conduct exception is inapplicable here.’”

In its press release denouncing the decision, ADF pointed out that 18 states have now passed laws requiring that participation in sex-specific athletic competition must be based on “biological sex” as identified at birth. However, if Title IX protects transgender girls from being excluded from participating in such sports, the state laws would be preempted by federal law. Although the 2^nd Circuit decision does not directly rule on the merits of that question, Judge Chin’s ruling strongly suggests that attempts by schools to exclude transgender girls could subject the schools to Title IX liability.

Senior Judge Chatigny was appointed by President Bill Clinton. Judge Chin was appointed to the 2^nd Circuit Court of Appeals by President Barack Obama.

Legal Issues | Tagged 2nd Circuit, ACLU LGBT Rights Project, Alanna Smith, Alliance Defense Freedom, allowing transgender girls to compete, Andraya Yearwood, Ashley Nioletti, Biden Administration Transgender Policies, Chelsea Mitchell, Circuit Judge Denny Chin, Connecticuit Interscholastic Athletic Conference, District Judge Robert Chatigny, gender identity discrimination, Obama Administration transgender policies, Pennhurst doctrine, Selina Soule, Soule v. Connecticut Association of Schools, Terry Miller, Title IX gender identity discrimination, Title IX sex discrimination, Title VII gender identity discrimination, Title VII sex discrimination, Transgender sports policy, Trump Administration transgender policies, US Court of Appeals | Comment

8th Circuit Greenlights Anti-Trans Discrimination by Catholic Health Care Providers and Employers

December 14, 2022

A three-judge panel of the 8^th Circuit Court of Appeals issued a decision on December 9 upholding an injunction barring the U.S. Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing against Catholic institutions a rule that forbids health care providers from denying gender-affirming care to transgender individuals and that requires employers to cover gender-affirming care in their employee benefit plans.

The ruling upheld an injunction issued on January 19, 2021, by Chief U.S. District Judge Peter D. Welte of the District of North Dakota. Judge Welte was ruling in a lawsuit brought by The Religious Sisters of Mercy (RSM), RSM’s health care center, and various other North Dakota plaintiffs, and by Catholic Charities of North Dakota, the Catholic Medical Association, and the State of North Dakota. The injunction protects the plaintiffs and their members from any enforcement action by HHS or the EEOC, but does not directly affect individuals who bring lawsuits for denial of care or coverage against the plaintiffs. The court’s ruling is based on its interpretation of the Religious Freedom Restoration Act (RFRA), which provides a defense against the government’s enforcement of federal laws that substantially burden free exercise of religion.

Although the injunctive relief appears to be focused primarily on North Dakota, the co-plaintiff Catholic Medical Association’s members include Catholic hospitals and health-care providers in thousands of places around the country, so the practical effect may be to allow all of them to deny provision of gender-affirming care or its financing.

The litigation dates back to the final years of the Obama Administration, when HHS issued a Rule interpreting the anti-discrimination provision of the Affordable Care Act (ACA), Section 1557, to forbid discrimination by health care entities receiving federal money from discrimination on the basis of sexual stereotypes or gender identity, after the EEOC had interpreted Title VII of the Civil Rights Act of 1964 to ban employment discrimination based on sexual stereotyping or gender identity. Courts have generally follow interpretations of Title VII when they are interpreting Title IX of the Education Amendments of 1972, which forbids educational institutions from discrimination because of sex, and which is incorporated by reference into Section 1557 of the ACA.

The Obama Administration Rule was issued in 2016, shortly before Donald Trump was elected. The Trump Administration advised courts where litigation was then pending challenging the 2016 rule that it would not enforce the contested provisions while it considered replacing them. Litigation in other parts of the country resulted in injunctions being issued by some courts against the Obama Administration Rule, but when the Trump Administration issued its new rule in June 2020, deleting protection against gender identity discrimination, some other federal courts issued injunctions against that rule. In the meantime, individuals suing for discrimination by employers (including states that provide health insurance for their employees) won significant victories under Section 1557, which the Supreme Court has interpreted to provide a “private right of action.” The overall situation regarding these rules and their application is thus quite messy.

What is at stake for the plaintiffs in this and several similar cases brought by religious plaintiffs pending in other parts of the country is the possibility of being disqualified from participating in the Medicaid and Medicare programs, being fined, or being subjected to court orders in lawsuits by the government, if a court finds that they have violated the ACA’s antidiscrimination requirements.

The government argued that the lawsuit in North Dakota, which was aimed at attacking enforcement of the 2016 Rule, should be dismissed as moot, because the 2020 Trump Administration Rule revoked the 2016 rule. But the plaintiffs prevailed on their argument that they were attacking the interpretation of Section 1557 and Title VII – as to which the EEOC during the Trump Administration did not back away from its interpretation of Title VII to ban gender identity discrimination. The EEOC’s position was vindicated around the time the Trump Administration issued its 2020 Rule when the Supreme Court ruled in Bostock v. Clayton County that Title VII encompasses discrimination because of “transgender status.”

The Supreme Court ruling was followed five months later by the election of Joe Biden, who then took office in January 2021 and directed his administration to follow the Bostock decision in enforcing federal sex discrimination laws. HHS sent notifications to health care entities covered by the ACA later in 2021, announcing that it was interpreting Section 1557 to cover gender identity claims, and that refusals to perform gender affirming care to transgender individuals could result in liability under that statute.

The Obama, Trump, and Biden Administration interpretations of Section 1557 also differed over whether the exemption of religious educational institutions from compliance with Title IX should be considered as part of Title IX’s inclusion by reference in Section 1557. As one would expect, during the Obama Administration HHS said that the religious educational institution exemption did not apply to Section 1557, but the Trump Administration took the contrary view, and some courts ruling on challenges to the gender identity rule have sided with the Trump Administration on this.

In the Bostock decision, Justice Neil Gorsuch wrote for the Court that it was ruling only on the question whether discrimination because of sexual orientation or transgender status violates Title VII, and not on how to interpret other federal statutes. The three cases joined in appeal in Bostock v. Clayton County all involved plaintiffs who claimed that they were discharged because of their sexual orientation or gender identity, and the Court ruled that they could sue under Title VII, reversing contrary rulings by the 11^th Circuit (sexual orientation) and affirming rulings by the 2^nd Circuit (sexual orientation) and the 6^th Circuit (gender identity). The Trump Administration sought to give Bostock a narrow interpretation and argued that it did not affect their new Rule interpreting Section 1557 of the ACA. Justice Gorsuch also referred to the Religious Freedom Restoration Act (RFRA) as a “super statute” that could be relevant to religious freedom claims asserted by employers in Title VII cases.

This past summer, HHS published new proposed regulations that would basically restore and extend the Obama Administration’s 2016 regulations and make clear that gender identity discrimination is forbidden under the ACA and that refusal of health care providers and insurers to provide and cover such care violates Section 1557.

The case of Religious Sisters of Mercy v. Xavier Becerra (Secretary of HHS), now focuses on whether the plaintiffs are protected by RFRA from any enforcement action by HHS or the EEOC. The district judge answered that question affirmatively in 2021, based on the guidelines and notifications sent out by HHS stating that they would enforce the prohibition on gender identity discrimination relying on the reasoning of the Bostock case. Although HHS and EEOC have not yet actively pursued Catholic hospitals or other Catholic institutions, the plaintiffs persuaded the district court, and ultimately the court of appeals, that the threat of enforcement was sufficient to give the plaintiffs standing to bring this lawsuit and seek injunctive relief.

Most of the December 9 opinion by Chief Judge Lavenski Smith of the 8^th Circuit is focused on the issue of standing. The court accepts that the plaintiffs have a good defense against any enforcement action by virtue of RFRA, which places the burden on the government to show that it has a compelling interest in enforcing a challenged law that substantially burdens free exercise of religion, and that enforcing the law is the least restrictive alternative to achieving that interest. Smith’s opinion supports Judge Welte’s contention that if the government has a compelling interest in making sure that transgender people can get gender-affirming care, it can achieve that without forcing Catholic institutions to violate their religious beliefs by compelling them to perform the procedures or finance them.

Chief Judge Welte was appointed by President Donald J. Trump. Chief Judge Smith was appointed by President George W. Bush. The other judges on the three judge panel are Judge Raymond Grueder, also appointed by Bush, and Judge Jonathan Kobes, a Trump appointee. The 8^th Circuit Court of Appeals is dominated by Republican appointees – ten of the eleven active judges on the court.

Legal Issues | Tagged 8th Circuit Court of Appeals, Affordable Care Act, Bostock v. Clayton County, Chief Judge Levanski Smith, Chief Judge Peter D. Welte, Department of Health and Human Services, discrimination because of transgender status, Equal Employment Opportunity Commission, gender identity discrimination, gender-affirming care, Religious Sisters of Mercy v. Becerra, Sec. 1557 Affordable Care Act, sex reassignment surgery, sex stereotyping, Title IX of the Educations Amendments of 1972, Title VII of the Civil Rights Act of 1964 | Comment

Federal Court Orders New York to Allow Religious Adoption Agency to Deny Services to Same-Sex and Unmarried Couples

September 8, 2022

Granting summary judgment to New Hope Family Services, a non-governmental agency located in Syracuse, U.S. District Judge Mae A. D’Agostino ruled on September 6 that the state’s Office of Children and Family Services (OCFS) violated New Hope’s freedom of speech under the First Amendment by giving it an ultimatum either to comply with OCFS’s non-discrimination regulation or close down their adoption services. The regulation, adopted in 2013, prohibits discrimination against applicants for adoption services based, among other grounds, on their marital status, sexual orientation, or gender identity or expression.

Under New York’s adoption law, only agencies authorized by OCFS can provide adoption services, which include screening prospective adoptive parents, taking temporary custody of children in need of adoption or foster care placement, matching children with parents, evaluating the placement and making recommendations to the court, since adoptions must be approved by a judge to become final.

New Hope was founded by a Christian minister, originally under the name Evangelical Family Service, in 1965, when the state issued a two-year certificate of incorporation, which was made “perpetual” in 1967. From its beginnings, New Hope’s Christian mission focused on placing children with traditional heterosexual married couples, which then were the only adoptions permitted under the state’s adoption law. Over time, the adoption law was amended to allow adoptions by single adults, unmarried couples, and same-sex couples, but New Hope adhered to its policy, offering to refer applicants to other agencies if New Hope’s religious policies precluded providing them with services.

New Hope’s policy became an issue for the OCFS in 2018, when it undertook a review of all adoption agencies that were operating under “perpetual authorization” to determine whether they were operating in compliance with state law. An OCFS agent made a site visit and congratulated New Hope on the quality of its services, but after reviewing New Hope’s policies and procedures manual, the agent called New Hope and said that its referral policy violated the agency’s anti-discrimination regulation. When New Hope indicated that it would adhere to its religious beliefs, OCFS issued an ultimatum: agree to stop discriminating or lose their authorization and have to end their adoption services.

New Hope responded by suing OCFS on December 6, 2018, alleging a violation of its constitutional rights under the 1^st and 14^th Amendments, and seeking a preliminary injunction against OCFS while the case was being decided. Judge D’Agostino, who was appointed by President Barack Obama, granted a motion by OCFS to dismiss the case, making the request for a preliminary injunction moot. OCFS appealed to the 2^nd Circuit Court of Appeals, narrowing its claim to free exercise of religion, freedom of speech, and freedom of association, while dropping its 14^th Amendment claim. The Court of Appeals panel reversed the dismissal and sent the case back to Judge D’Agostino, with direction to reconsider her refusal to grant a preliminary injunction.

The 2^nd Circuit opinion, issued on July 21, 2020, found that all three 1^st Amendment claims were sufficiently plausible to state a valid claim. The opinion by Circuit Judge Reena Raggi, an appointee of President George W. Bush, gave an extensive analysis that provided a roadmap for Judge D’Agostino to follow in consider the merits of the case. She issued a preliminary injunction on October 5, 2020, based only on the free exercise and free speech claims, finding that New Hope was likely to prevail on those claims, when considered in light of the 2^nd Circuit’s analysis.

After concluding discovery, New Hope and OCFS filed cross-motions for summary judgment. In her September 6 ruling, Judge D’Agostino focused solely on the freedom of speech claim.

New Hope argued this as a “compelled speech” case, contending that OCFS was demanding that New Hope convey a message that unmarried and same-sex couples were suitable adoptive parents and that it was in the best interest of children to be placed with them for adoption. The 2^nd Circuit ruling virtually dictated that Judge D’Agostino accept this argument. OCFS was contending that this was a “government speech” case, arguing that the government delegated its functions respecting adoption to private and public agencies, and that when the agency certified adoptive parents and recommended placements and court approval of adoptions, they were in effect speaking for the government and applying evaluative criteria prescribed by statutes and regulations. The 2^nd Circuit rejected that argument, as did Judge D’Agostino, who was bound to follow the 2^nd Circuit’s direction, even though she had accepted OCFS’s defense when originally dismissing the case. The 2^nd Circuit had noted that the criteria were very general and that authorized agencies were called upon to make independent assessments and exercise judgment, so their conclusions could not be attributed to the government.

In free speech cases, the government’s burden is to show that it has a compelling interest and that its policies are narrowly tailored to avoid abridging free speech more than was necessary to achieve its interest. New Hope argued that its “recusal and referral” policy appropriately achieved the government’s compelling interest in finding homes for children in need of adoption and allowing unmarried couples and same-sex couples to adopt. Although New Hope would not provide services to unmarried couples and same-sex couples, it always offered to refer them to agencies that would take their applications, determine their suitability, match them with children, and facilitate the process through judicial approval.

The court found that there was no evidence that any unmarried or same-sex couple had been unable to adopt due to New Hope’s policy, and that shutting down New Hope’s adoption business would undermine the government’s compelling interest in maximizing placements for adoptive children, by removing an agency that had managed thousands of adoptions in its half century of operation.

In light of the 2^nd Circuit’s decision last year, it is unlikely that an appeal by the state would be successful, and even less so in light of the Supreme Court’s decision last year in Fulton v City of Philadelphia, which ruled in favor of Catholic Social Services in its battle with the city’s child welfare agency. The 2^nd Circuit’s decision had gone into some detail in finding evidence of “hostility” to New Hope’s religious beliefs in the language used by OCSF officials. The 2^nd Circuit had also questioned the scope of OCSF’s non-discrimination regulation, which the court considered to have gone beyond the language of the adoption law.

At the time the law was amended to add “same-sex couples” to the list of those who could adopt, religious groups had unsuccessfully asked for an amendment exempting them from having to provide adoption services to same-sex couples, but they were assured by Governor David Paterson that the amendment was “permissive” only – expanding the list of people who could adopt – but not a mandate that would require any agency to change its policies. The 2^nd Circuit commented that the regulation went beyond the statute by applying a non-discrimination policy to religious organizations rather than accommodating them to avoid free exercise and freedom of speech issues.

Judge D’Agostino explained briefly that she was ruling only on the free speech claim because it was unnecessary to decide the religious free exercise claim in order to rule in New Hope’s favor and issue the requested injunction.

Alliance Defending Freedom is representing New Hope. When the case was pending before the 2^nd Circuit, several amicus briefs were filed in each side, including opposing briefs from different groups of religious and non-religious organizations, and a civil rights brief by Lambda Legal, the ACLU, and Americans United for Separation of Church and State.

Legal Issues | Tagged accommodation of religious beliefs, adoption by same-sex couples, adoption by single people, adoption by unmarrired couples, anti-discrimination regulations governing adoption services, Circuit Judge Reena Raggi, District Judge Mae D'Agostino, Governor David Paterson, New Hope Family Services, New Hope v. Poole, New York adoption laws, New York Office of Children and Family Services, religious adoption agencies, religious exemption | Comment

Washington Law Against Conversion Therapy Survives Constitutional Attack

September 7, 2022

A three-judge panel of the U.S. Court of Appeals for the 9^th Circuit, which included the first member of that bench appointed by President Donald Trump, unanimously ruled in Tingley v. Ferguson, 2022 WL 4076121 (September 6) that a circuit precedent from 2014, Pickup v. Brown, 740 F. 3d 1208, which rejected a constitutional challenge to California’s ban on conversion therapy for minors, is still a binding precedent in the 9^th Circuit, thus affirming U.S. District Judge Robert J. Bryan’s decision (557 F.Supp.3d 1131 [W.D. Wash., 2021] to dismiss a challenge to a virtually identical law enacted in 2018 by the state of Washington.

The only real point of suspense in the case was what effect the panel might give to the U.S. Supreme Court’s decision in 2018 in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361. Three-judge panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9^th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court. The 2018 decision is usually referred to as the NIFLA case.

NIFLA operates a “pregnancy clinic” that counsels its clients not to resort to abortion. It challenged a California statute that required licensed pregnancy clinics to inform clients that California law provides free or low-cost family planning services, including abortion. NIFLA claimed that this requirement violated its free speech rights, compelling it to speak the state’s message rather than its own. The 9^th Circuit rejected that challenge, finding that the state could regulate “professional speech” as a distinct category of speech enjoying less protection under the 1^st Amendment than other categories, such as political or artistic speech.

The Supreme Court reversed with an opinion by Justice Clarence Thomas, stating that “professional speech” was not less protected by the 1^st Amendment than other forms of speech, and specifically criticizing decisions by the 3^rd and 9^th Circuits that had rejected free speech challenges to state laws designating performance of conversion therapy by licensed counselors as professional misconduct for which they could incur professional discipline. Both of those cases had referred to “professional speech” as being less protected than other forms of speech.

In this new challenge to Washington’s law, licensed counselor Brian Tingley, who describes himself as a “Christian counselor” who attempts to get children to feel comfortable with their biological sex and to minimize homosexual attractions, sued with the representation of Alliance Defending Freedom, claiming that after the NIFLA decision, the 9^th Circuit’s prior rulings on conversion therapy were no longer valid precedents.

District Judge Bryan disagreed, finding that the prior rulings had not depended solely on the “professional speech” theory. Instead, the district court considered a regulation of health care practice to be concerned with conduct that incidentally involved speech, in which case the state could regulate the conduct to achieve an important governmental interest. hat interest would be to protect minors from the adverse psychological and emotional effects of conversion therapy, which have been well-documented by numerous studies and led most professional associations in the health care field to condemn the practice.

The 9^th Circuit panel agreed with Judge Bryan that the NIFLA opinion had not effectively overruled Pickup v. Brown or a subsequent case from California, Walsh v. Brown, that the Washington statute was virtually identical with the California statute that had been upheld, and that circuit precedent thus dictated that Tingley’s case be dismissed.

Judge Ronald M. Gould, writing for the panel, added a section to the opinion, speaking only for himself and Judge Kim McLane Wardlaw, identifying an “additional reason” for reaching the conclusion that the Washington law is constitutional. “The Supreme Court has recognized that laws regulating categories of speech belonging to a ‘long tradition’ of restriction are subject to lesser scrutiny.” Looking back at the NIFLA ruling, he noted that Justice Thomas wrote that in the NIFLA case there was not “persuasive evidence of a long (if hereto unrecognized) tradition” of exempting speech by professionals from First Amendment protection. However, Gould pointed out, there was a long tradition of the states regulating licensed health care practice.

“There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders,” he wrote, citing U.S. Supreme Court cases from 1889 and 1898 to make his point. “And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs.” He also noted that the Supreme Court had in the past “relied upon the positions of the professional organizations Tingley criticizes, even when those positions have changed over time.”

Gould commented that “the evidence presented shows some difference in opinion about the efficacy and harm of conversion therapy, but the ‘preponderating opinion’ in the medical communicate is against its use.”

“That doctors prescribed whiskey in 1922, and thought of homosexuality as a disease in 1962, does not mean that we stop trusting the consensus of the medical community in 2022 or allow the individual desires of patients to overcome the government’s power to regulate medical treatments.” And he pointed out that invalidating the conversion therapy ban because the “therapy” consisted of speech “would endanger other regulations on the practice of medicine where speech is part of the treatment.” For example, he noted a Washington statute that prohibits doctors from promoting “for personal gain any unnecessary inefficacious drug, device, treatment, procedure or service.” Such promotion would normally be done through speech. Other sections of the law would subject to discipline the offering “to cure or treat diseases by a secret method,” and prohibit all advertising by health care professionals that is “false, fraudulent, or misleading.”

He also noted that the law was narrowly focused on licensed professionals, exempted unlicensed religious counselors, and clearly did not apply outside the confines of professional-client treatment relationships. Counselors are free to state their views about conversion therapy, both to their clients and publicly, but are just forbidden to provide conversion therapy to clients.

As to Tingley’s separate claim that the law violates his free exercise of religion, the court concluded that this was a religiously-neutral law of general applicability, and thus under existing Supreme Court precedent Tingley could not claim an exemption from complying based on his religious beliefs. The court also rejected Tingley’s argument that the law was unconstitutionally vague, finding that past decisions had rejected the argument that “sexual orientation” and “gender identity” are terms whose meaning is uncertain. “’Sexual orientation’ and ‘gender identity’ have common meanings that are clear to a reasonable person,” wrote Judge Gould, “let alone a licensed mental health provider.”

Judge Mark Bennett, the Trump appointee on the panel, joined the majority opinion, but only to the extent that it found the question of constitutionality to be governed by the 9^th Circuit precedents. “Respectfully,” he wrote, “I believe that we should not hypothesize with dicta when our conclusion is commanded by binding precedent.” Judges Gould and Wardlaw were appointed by President Bill Clinton.

Numerous amicus briefs were filed in this case, reflecting the heavy investment by the faith-based community in attempting to protect the practice of conversion therapy, especially by religiously-motivated licensed counselors, and the commitment by LGBTQ and other civil liberties groups to protect minors from a dangerous and exploitative practice.

Alliance Defending Freedom is likely to seek en banc review and, ultimately, to asking the Supreme Court to take up this case. Judge Gould recognized in his opinion for the court that this ruling opens up a split with a recent opinion by the 11^th Circuit, Otto v. Boca Raton, 981 F.3d 854 (2020), which struck down a municipal conversion therapy ban on the theory that conversion therapy that is limited to speech enjoys full 1^st Amendment protection, rejecting the argument that it was a regulation of professional conduct only incidentally burdening speech. The 11^th Circuit took a different view of the impact of the Supreme Court’s NIFLA ruling, so it is possible that this case will provide ADF with the vehicle it is seeking to get the issue back before the Supreme Court.

Legal Issues | Tagged 9th Circuit, Alliance Defending Freedom ADF, anti-gay conversion therapy, anti-transgender conversion therapy, Brian Tingley, conversion therapy, conversion therapy of minors, gender dysphoria, gender identity, Judge Kim McLane Wardlaw, Judge Mark J. Bennett, Judge Robert J. Bryan, Judge Ronald M. Gould, licensed health care professionals, sexual orientation, U.S. Court of Appeals, Washington conversion therapy ban | Comment

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