New York Law School

Art Leonard Observations

Masterpiece Baker Phillips Wins a Round in New Lawsuit Against Colorado Civil Rights Officials

Masterpiece Cakeshop baker Jack Phillips is back in court again, this time suing officials of Colorado’s Civil Rights agency and the state’s attorney general and governor to try to block the Commission from continuing a case against him for refusing to make a custom-designed cake to celebrate a transgender attorney’s celebration of the anniversary of her transition. On February 4, Senior U.S. District Judge Wiley Y. Daniel largely rejected a motion by defendants to dismiss the case, although he narrowed its scope somewhat.

For those coming in late to this ongoing drama: Phillips and Masterpiece Cakeshop were found by the Commission and the Colorado Court of Appeals to have violated the state’s public accommodations law when he refused to make a wedding cake for a gay couple in 2012 because of his religious objection to same-sex marriage. The U.S. Supreme Court reversed those decisions in a 7-2 ruling last June 4, based on the Court’s conclusion that the state had not afforded Phillips a “neutral” forum to consider his 1st Amendment defense.

Part of the Court’s conclusion that the Commission was “hostile” to Phillips on religious grounds rested on the Commission’s treatment of a provocateur named William Jack. While the discrimination claim by a gay couple was pending before the Commission, Jack approached three Colorado bakeries that custom-decorate cakes, asking them to make cakes for him that “conveyed disapproval of same-sex marriage, along with religious text,” quoting here from Justice Anthony M. Kennedy’s opinion for the Supreme Court. All the bakers turned him down, stating that they “objected to those cakes’ messages and would not create them for anyone.” Jack filed discrimination charges against the bakeries, but after investigating his charges, the Colorado Civil Rights Division found no “probable cause” that the statute was violated, and the Commission affirmed that determination.

The Supreme Court seized upon the Commission’s response to Jack’s provocation, saying that the Commission’s hostility was evident in “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” The Civil Rights Division ruled in Phillips’ case that “any message the requested wedding cake would carry would be attributed to the customer, not the baker,” while “the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.” Justice Kennedy also critically noted that “the Division found no violation of the Act in the other cases in part because each bakery was willing to sell other products to the prospective customers” but the “Commission dismissed Phillips’ willingness to sell birthday cakes, shower cakes, cookies and brownies, to gay and lesbian customers as irrelevant.”

The Supreme Court had announced its decision to grant Jack Phillips’ petition for review on June 26, 2017 – an announcement that received widespread media coverage and apparently prompted Autumn Scardia, a transgender attorney, to take a leaf from William Jack’s book. She phoned Masterpiece and inquired about getting a cake with a blue exterior and a pink interior to “celebrate her transition from male to female.” Scardina said she wanted the cake for a birthday party she was planning. It was only when she described the color scheme and the reason for it that Phillips turned down the order, stating that he would not make a cake celebrating a gender transition for “any customer, no matter the customer’s protected characteristics.” In his current lawsuit, he alleges that he “offered to create a different custom cake for Scardina or to sell her any of the pre-make items available for purchase.” But she declined to order anything else.

Scardina filed a discrimination charge with the Division. Several weeks after the Supreme Court ruled on the first Masterpiece Cakeshop case, the Division issued a probable cause determination against Phillips for violating the public accommodations law by refusing Scardina’s cake order. While noting the religious reasons cited by Phillips for specifically not making a cake designed to celebrate a gender transition, due to his religious belief that a person’s sex is “an immutable God-given reality,” the Commission nonetheless concluded that “the refusal to provide service to Complainant was based on her transgender status.”

On October 2, 2018, the Commission filed a formal complaint against Phillips based on the Division’s finding, and set the case for a hearing. Anticipating this move, Phillips filed a complaint in federal court on August 14, 2018, which the defendants promptly moved to dismiss. Phillips charges that the state is out to get him, characterizing its actions as “unconstitutional bullying.” After the defendants’ dismissal motion and the Commission’s formal complaint were filed, Phillips filed an amended complaint to take account of these developments. The Commission’s hearing. The hearing has not yet taken place.

Phillips claims that the defendants’ interpretation of the public accommodations law violates his First Amendment rights to free exercise of religion and freedom of speech. He also makes a Due Process vagueness claim against the statute, attacking it on several grounds, including a structural charge against the statutory criteria for the appointment of Commission members by the governor, which require, among other things, that several members of the Commission be representative of minority communities protected by the anti-discrimination law. He also asserted an equal protection claim, focused again on the differential treatment cited by the Supreme Court in noting the Commission’s refusal to prosecute the bakers who had turned down William Jack’s order for “anti-same-sex marriage cakes.”

Phillips sought injunctions against the state officials forbidding them from interpreting and enforcing the statute against him. He also sought a judicial declaration about the violation of his constitutional rights, and compensatory, punitive and nominal damages against the Civil Rights Division’s Director, Aubrey Elenis, and the seven members of the Commission.

In ruling on the motion to dismiss, Judge Daniel found that none of the “abstention doctrines” that the federal courts have developed to determine whether to allow federal lawsuits to interfere with state administrative proceedings should apply in this case, and that Phillips had standing to bring this lawsuit, not only because of the proceedings ongoing against him, but also because he wanted to post a policy statement on his business’s website about the basis on which they would refuse to make custom-cakes, but was inhibited from doing so because a section of the public accommodations law states that businesses cannot publish discriminatory policies.

However, Daniel did find that Director Elenis and the individual Civil Rights Commissioners enjoy absolute immunity from personal liability for damages, accepting their argument that they are acting as prosecutors and adjudicators. He wrote that it is “well-established that prosecutors are absolutely immune for activities which are intimately associated with the judicial process such as initiating and pursuing” a prosecution. He found that the U.S. Court of Appeals for the 10th Circuit, whose rulings are binding on the district court in Colorado, has “extended absolute immunity to state administrative or executive officials serving in adjudicative, judicial, or prosecutorial capacities.”

Furthermore, the judge found that Governor John Hickenlooper should be dismissed as a defendant, since he played no direct role in enforcing the public accommodations law, so suit against him in his official capacity was barred by the 11th Amendment. Just in time, it seems, since Hickenlooper’s term ended a few days after the court issued it January 4 decision, with Governor Jared Polis taking office on January 8. This decision means that Polis, the state’s (and nation’s) first out gay man to be elected a governor, did not become a defendant in this lawsuit immediately on taking office!

However, the court refused to dismiss the Attorney General, Cynthia Coffman, from the case, finding that the attorney general’s role of representing the Commission in court did make that office potentially subject to injunctive relief. Once again, however, the timing was fortuitous, since Coffman’s term has also ended, as Phil Weiser took office as attorney general on January 8, and the defense of this case will be carried on by his office.

Of course, Phillips is represented by Alliance Defending Freedom, the right-wing Christian litigation group that represented him in appealing the wedding cake decision to the Supreme Court. Not coincidentally, ADF also represents Harris Funeral Homes, seeking Supreme Court review of the 6th Circuit’s decision that Harris violated Title VII of the Civil Rights Act when it fired a transgender funeral director, as well as anonymous plaintiffs who are asking the Supreme Court to overturn the 3rd Circuit’s decision rejecting a constitutional challenge to the Boyertown, Pennsylvania, school district’s transgender-affirmative facilities access policy. One of the best ways to keep up with some major cases in LGBT-related litigation is to periodically visit ADF’s website.

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D.C. Circuit Panel Dissolves Preliminary Injunction Against Trump Trans Military Ban

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on January 4 that U.S. District Judge Colleen Kollar-Kotelly should not have denied a motion earlier this year by the Justice Department to dissolve a preliminary injunction she issued more than a year ago to block the Trump Administration’s ban on transgender military service from going into effect. The court did not issue a formal opinion, instead releasing a “Judgement” that was not designated for publication, although it indicated that “separate opinions” by the judges “will be filed at a later date.”  The case is now called Jane Doe 2 v. Shanahan, as Trump has been removed as an individual defendant, and Acting Secretary of Defense Patrick M. Shanahan is now the lead defendant.

The ruling, although quickly described in the press as a victory for the Trump Administration, will have no immediate effect, because nationwide preliminary injunctions against implementation of the ban issued by three other U.S. District Courts remain in effect. However, the explanation issued by the judges marks the first time that any federal judge has found it appropriate to adopt a deferential standard of review either to Trump’s original policy declaration pronounced through twitter messages on July 26, 2017, to a subsequent White House memo amplifying the policy, or to the policy adopted for implementation by former Defense Secretary James Mattis with the president’s approval in February 2018.

In her October 30, 2017, ruling granting the plaintiffs’ motion for a nationwide preliminary injunction against implementation of the ban, Judge Kollar-Kotelly found that the plaintiffs were likely to prevail on the merits of their claim that the ban announced by Trump in July and amplified in the August 2017 memorandum violated their equal protection rights under the 5th Amendment, and allowing the ban to go into effect would cause irreparable injury to the plaintiffs while not shown to be harmful to national security, as alleged by the government.  See 275 F. Supp.3d 167.

Judge Kollar-Kotelly was the first to enjoin the ban, but three other district courts issued similar opinions authorizing virtually identical nationwide preliminary injunctions over the ensuing weeks, from courts located in Baltimore, Maryland, Seattle, Washington, and Riverside, California.

While the litigation was going on in the district courts, Secretary Mattis appointed a task force as directed in the White House memorandum, to devise an implementation plan for the ban. This was submitted to the president in February, 2018, in response to which he issued a new memorandum revoking his prior memorandum and authorizing Mattis to implement the plan he had proposed. Mattis’s plan was accompanied by a Report purportedly devised by this Task Force of “experts” (none of them named in the document or otherwise), although knowledgeable observers noted striking resemblances to articles published by conservative think-tanks opposed to transgender rights.

After Mattis adopted the plan for implementation, the Justice Department filed motions in the four district courts arguing that the preliminary injunctions should be dissolved because they were directed at a policy that had been revoked, and the “new” Mattis policy was sufficiently different from what Trump had originally announced to change the analysis. Thus far, three of the district courts have denied the Justice Department’s motion, which is still pending in the fourth court. The three judges who denied the motion all concluded that the Mattis policy was substantially the same as the Trump policy that they had preliminarily enjoined, and that no new development justified allowing the ban to go into effect while the lawsuits played out. In the fourth case, the judge who issued the injunction retired in June 2018 and the case was assigned to a new judge, who has yet to rule on the motion.

The Justice Department appealed the three rulings to the D.C. and 9th Circuit Courts of Appeals. As of January 4, the 9th Circuit had not issued a ruling on the appeal, but had refused to stay the injunctions issued by the district judges in Seattle and Riverside.

Impatient at the pace of litigation, the Solicitor General filed Petitions in the Supreme Court late in November seeking to leapfrog the courts of appeals and have the Supreme Court directly address whether the preliminary injunctions should be lifted, and then filed motions with the Court in all three cases in December, seeking a “stay” of the injunctions or their narrowing to apply only to the plaintiffs rather than to have nationwide effect. Those petitions and motions had been scheduled by the Court to be discussed in its private conference on January 11.

The D.C. Circuit panel that ruled on January 4 consisted of Judges Thomas B. Griffith (appointed by George W. Bush), Robert L. Wilkins (appointed by Barack Obama), and Senior Judge Stephen F. Williams (appointed by Ronald Reagan).

The panel found that Judge Kollar-Kotelly had “clearly” erred in concluding that the Mattis policy adopted in February 2018 was substantially the same as the Trump policy that she had preliminarily enjoined in October 2017. The court pointed out that unlike the original policy, Mattis’s plan was not a total ban. It “grandfathers” currently serving transgender personnel who had “come out” in reliance on former Defense Secretary Ashton Carter’s lifting of the long-standing ban on transgender military service effective July 1, 2016, many of whom then initiated transition, including in some cases complete surgical gender affirmation, and were successfully serving in the gender with which they identify. Mattis would let them continue to serve.

Furthermore, seeking to escape the equal protection arguments made by the plaintiffs and preliminarily accepted by the district judges, Mattis’s “experts” had reconfigured the ban to be based not on transgender identity, but rather on a diagnosis of “gender dysphoria,” the term used in the most recent addition of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM). Now the government was arguing that it was disqualifying people who had been diagnosed with a professionally recognized medical condition, which the DSM describes in terms of symptoms that – at least as described in the DSM – would sound disabling.

Under Mattis’s version of the policy, anybody diagnosed with gender dysphoria would be disqualified from enlisting or from continuing to serve, unless they were “grandfathered” under the policy. Individuals who identify as transgender but have not been diagnosed with gender dysphoria would be allowed to enlist and serve, provided they did not seek to transition and would serve in the gender with which they were identified at birth, called by the policy their “biological sex.”

Lawyers for the plaintiffs in the four cases have pointed out that this is a semantic game, but the court of appeals indulges the government’s distinction between status and medical diagnosis, pointing out that the lawyers for the plaintiffs have stated in their briefs and arguments that not all transgender people are diagnosed with gender dysphoria or seek to transition. Thus, in the view of the court, agreeing with the Justice Department, the policy does not ban service by transgender people, as such – just by those diagnosed with gender dysphoria or who wish to transition and serve in other than their sex identified at birth.

The district judges had found that in practical terms this amounted to the same transgender ban that Trump had proclaimed, with the exception of the “grandfathered” personnel, estimated at about 900 people according to the January 4 D.C. Circuit ruling. But the court of appeals disagreed, finding it different.

Furthermore, said the court, since Mattis claimed to have adopted this policy on the recommendation of an “expert” Task Force that had produced a report, it was entitled to the judicial deference normally accorded to military personnel policies. For purposes of deciding on preliminary injunctive relief, the court of appeals found that the district court should have essentially taken the Justice Department’s representation of the policy at face value and not concluded that the plaintiffs were likely to prevail on their equal protection claim.

At the same time, the D.C. panel said that it was not speaking to the ultimate merits of the case. The court said that it was vacating the preliminary injunction but “without prejudice,” which means that it is possible that after discovery has been concluded, the plaintiffs could come back and try to persuade the court that the policy was not entitled to deference and was not justified for the purposes cited by the government. This does not allow the ban to go into effect, as noted above, because nationwide preliminary injunctions remain in effect in three other cases.

Since the D.C. Circuit’s ruling gives the government exactly what it sought in its appeal, the Solicitor General should be withdrawing his petition and motion from the Supreme Court in this case. But since the 9th Circuit has not ruled on the other two appeals, the Petitions filed in those cases will still be before the Supreme Court at its January 11 conference. And the D.C. Circuit’s ruling may influence the district court in Baltimore, which has yet to rule on the government’s motion to dissolve the injunction in that case.

The plaintiffs are represented by Kevin Matthew Lamb, Paul Reinherz Quitma Wolfson, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, Adam M. Cambier, Christopher R. Looney, Harriet Hoder, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, MA, Alan E. Schoenfeld, Wilmer Cutler Pickering Hale & Dorr, LLP, New York, NY, Amy Whelan, Christopher F. Stoll, Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA, Claire Laporte, Daniel L. McFadden, Kathleen M. Brill, Matthew E. Miller, Michael J. Licker, Rachel C. Hutchinson, Foley Hoag, LLP, Boston, MA, Jennifer Levi, Mary L. Bonauto, GLBTQ Legal Advocates & Defenders, Boston, MA, and Nancy Lynn Schroeder, Wilmer Cutler Pickering Hale & Dorr LLP, Los Angeles, CA.

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Court Orders New York State to Pay Brooklyn Woman $125,000 for Using Her Photo in HIV Discrimination Ad Campaign

New York Court of Claims Judge Thomas H. Scuccimarra has decided that the State of New York should pay Avril Nolan $125,000 for using her photo in an HIV Discrimination Advertising Campaign without a disclaimer that the person in the picture was a “model.” The November 8 ruling came after the Appellate Division court in Brooklyn ruled last January that the use of the photo in print and on-line advertisements, in which the statement “I AM POSITIVE (+)” appeared next to the photo, was defamatory as a matter of law, and sent the case back to the Court of Claims for a determination of damages. Ms. Nolan is not HIV-positive.

The case is Nolan v. State of New York, 2018 N.Y. Misc. LEXIS 5887, 2018 N.Y. Slip Op 51789(U) (Ct. Claims, Nov. 8, 2018).

According to Judge Scuccimarra’s opinion, “Jena Cumbo, the photographer, had taken the photograph as part of a ‘street-style’ photography piece for Soma magazine, briefly profiling those photographed about their musical interests.” Cumbo did not have Nolan sign a release and, without asking her permission, sold the photograph to Getty Images, a company that compiles and sells stock photos for use in publications, advertisements, and so forth.

The State Division of Human Rights, which enforces the New York Human Rights Law’s ban on discrimination, was planning an advertising campaign to educate the public that it is illegal to discriminate against people because they are living with HIV. Instead of finding people living with HIV who might be willing to be photographed for such advertising, the DHR contacted Getty Images and bought the right to use Nolan’s photograph. Getty mistakenly represented to SDHR that Nolan had signed a general release for use of her photograph.

The Court of Claims hearing about damages to be awarded to Nolan focused on how she heard about the advertisement, her subsequent contacts with AM New York, which ran the ad, and the DHR, and the impact its publication had on her life.

Nolan, an Irish immigrant who was working for a public relations company in the fashion industry when the ad was published, learned about the ad on the morning of April 3, 2013, when she arrived at work and saw a notice an acquaintance had posted on her Facebook page, asking whether she had been in that morning’s issue of AM New York. She later received a private message from the same acquaintance with an image of the advertisement. She testified that when she saw the image she “was completely shocked” and “confused,” seeing the “words, ‘I am positive,’ beside my face, I was devastated.” She testified that she felt her “world was just falling down around her,” especially because AM New York was a “big target” for two of her clients, including an important new one.

She got a copy of the newspaper, and testified that she felt “sick to the bottom of my stomach.” She feared for her career in the intensely competitive atmosphere of the office where she was working. On advice of a friend, she told her bosses that morning, showing them the newspaper. She testified that she was “very, very emotional” and “couldn’t stop crying” as she spoke to them. Although her bosses expressed shock, she says that they “calmly went into crisis PR mode,” assessing how it could have happened and whether any clients could have seen it. They did not fire her, as she had feared.

She contacted the photographer, her mother (a psychologist, in Ireland), some friends, and an aunt who had been her mentor when she arrived in New York. Her aunt said she would find a lawyer to represent her.

The photographer contacted AM New York, Getty and the DHR, and put Nolan in touch with a DHR employee by email, who informed her, “After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model’s request.” The DHR spokesperson asked Nolan to send them an email stating she would not hold DHR liable and said, “We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan’s image.” Nolan responded, “Discussing this matter to get further advice but please remove my image from the advertisements. This has already caused enough problems and embarrassment.”

After her email to DHR, Nolan heard nothing further from the State to discuss the ad, but publication was quickly discontinued. Nolan testified to suffering considerable emotional distress, but over the next few months the constant thoughts about who might have seen the ad and how it might affect her subsided, although she claimed it took “a couple years” to rebuild her confidence. It was not until the discovery process for this lawsuit that she found out that the ad had been used in four print publications and three online publications, which triggered again her concerns about how many people might have seen it. Despite a few incidents, the issue generally did not come up or have any substantial effect on her work.

When she was asked during the hearing about what this “association with HIV” meant to her, she testified that while unfortunate, there is “so much stigma around it. . . It’s not like I was in an ad for cancer treatment” where sympathy would be elicited. “There’s a lot of negativity around it,” she testified, “and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think you’re easy, or you’re promiscuous. There’s a lot of just questions around your sexual behavior and your sexual activity. It makes people really think about something so personal to you. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with. This goes much deeper, and it really calls into question you as a person and your lifestyle.”

Wrote Judge Scuccimarra, “On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer [from an ad shoot] ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.”

The judge reviewed testimony by several witnesses about the psychological impact of the ad on Nolan, leading to the conclusion that she had been tense and nervous in the period following the publication, but the effects dissipated with time and eventually returned to normal.

As the Appellate Division had ruled back in January, for the purposes of defamation liability falsely labelling somebody as HIV positive fell into the “loathsome disease” category, in spite of changing public attitudes about HIV/AIDS, in which some injury is presumed and the plaintiff is entitled to damages without any requirement to show financial harm. However, the amount to award is up to the discretion of the court, taking into account all the circumstances, and courts will engage in comparisons with the amounts awarded in other cases, comparing the factual situations on some rough scale of fair compensation. Judge Scuccimarra wrote, “the court credits Ms. Nolan’s assessment of a culture of competition at her job, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor, but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.”

The judge decided that based on the “humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein,” a reasonable compensation would be $125,000, with appropriate interest from the date of the determination of liability on June 18, 2015, which was the date when Judge Scuccamarra had first ruled in her favor prior to the state’s appeal, as well as a refund to her of the fees for filing her lawsuit in the Court of Claims.

Nolan was represented by attorney Erin E. Lloyd of the firm Lloyd Patel LLP. Assistant Attorney General Cheryl M. Rameau of the Attorney General’s Office represented the State of New York.

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Kentucky Appellate Court Rejects Lesbian Co-Parent Custody/Visitation Claim, Reversing Family Court

Adopting a narrow construction of the Kentucky Supreme Court’s historic same-sex co-parent ruling, Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald, and ruled that Teri Whitehouse, the former union partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship.  From comments in concurring opinions, it seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights.  The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.

The case is Delaney v. Whitehouse, 2018 WL 6266774, 2018 Ky. App. Unpub. LEXIS 844 (Ky. Ct. App., Nov. 30, 2018).  The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court.  The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.

The opinion for the panel by Judge Robert G. Johnson (whose term expired after he wrote the opinion but before it was released by the court) accepts Judge McDonald’s factual findings, but disputes their legal significance.  McDonald found that the parties were in a romantic relationship and participated jointly in the decision to have a child, including the insemination process.  “The parties treated each other as equal partners and clearly intended to create a parent-like relationship” between Whitehead and the child, found Judge McDonald, who also found that “they held themselves out as the parents of this child since before conception.  They engaged in the process of selecting a [sperm] donor together, they attended appointments prior to insemination together, [Whitehouse] was present for the birth, and she has been known to the child as Momma.  The parties participated in a union ceremony, after the birth of the child, and they held themselves out as a family unit with friends and family.”

Judge McDonald referred to Mullins v. Picklesimer, finding that some factual distinctions between the cases were not significant enough to compel a different result, and concluded that Whitehead met her burden of establishing under Mullins that Delaney had waived her “superior right to custody” as the biological mother, and thus had conferred standing on Whitehouse to seek joint custody and parenting time after the parties’ relationship terminated.

The Appellate Court disagreed.  Johnson found that in Mullins, a case decided by the closely divided state supreme court voting 4-3, the court stated that “legal waiver ‘is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon.’”  Also, he noted, the Kentucky Supreme Court “emphasized that although there need not be a written or formal waiver, ‘statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.’”

“While it is indisputable that some of the factors set out in Mullins are present in this case,” wrote Johnson, “we are persuaded that those factors fall short of the clear and convincing proof required to establish waiver.  It seems clear that both parties agreed to artificial insemination for the purpose of having a child, that both parties shared parenting responsibilities to some extent, and that for a relatively short period of time they held themselves out as a family unit.  However, ‘no specific set of factors must be present in order to find there has been a waiver.’”  The court in Mullins found “a myriad of factors” supporting waiver, including that the women in that case gave their child a hyphenated last name, which was placed on the birth certificate, that they made a formal written agreement bestowing custody rights on the co-parent, and that even after the parties separated, they continued to share custody for a period of five months.  “In contrast,” wrote Johnson, “Delaney and Whitehouse made no efforts to formalize the custody status of the child at any point and the child bore only Delaney’s name.  Although the parties did participate in a union ceremony after the child was born, that was not a legally cognizable marriage ceremony.  Neither did the parties attempt to formalize their relationship after the decision of the United State Supreme Court in Obergefell v. Hodges.”  (One of the concurring judges noted that Obergefell was decided about a month after the parties had their union ceremony.)

“It is also telling,” Johnson wrote, “that the family court found that the parties intended to create a ‘parent-like’ relationship between Whitehouse and the child, not that Delaney specifically intended to confer parental rights on Whitehouse.  Finally, upon the deterioration of her relationship with Whitehouse, Delaney did not allow Whitehouse to continue to participate in parenting responsibilities with the child,” pointing out that the Mullins court had specifically pointed to the continued five months of shared parenting in that case as tending to show that the co-parent was more than merely a friend or caretaker.

“Because we reverse the trial court’s finding that Whitehouse had standing to seek custody and parenting time with Delaney,” wrote Johnson, “we need not address the family court’s best-interests analysis.”  This, of course, demonstrates clearly the inhumanity of the court’s decision.  The trial court, in a ruling as to which the Appellate Court finds no reason to question that court’s factual findings, deems totally irrelevant the trial court’s conclusion that it is in the best interest of this child to order joint custody and parenting time.  This is to be totally ignored, and a situation that is not in the best interest of the child is to be perpetuated, mainly because, as Johnson intimated and as the concurring judges made clear, these women did not formally marry when the opportunity created by Obergefell presented itself.

Concurring Judge Glenn Acree urged that the Kentucky Supreme Court reconsider Mullins in light of Obergefell, arguing that because same-sex couples can marry, there is no longer any need for Kentucky law to recognize parental rights in unmarried co-parents.  “Obergefell changed everything for same-sex relationships,” wrote Acree.  “Necessarily, it changed how we assess whether a parent has partially waived her constitutional right to raise her child, partial waiver being the theory invented in Mullin.  This case is an illustration.”  He noted that Obergefell was decided within thirty days of the parties’ non-legal union ceremony, so “they had the right and opportunity to legally marry.  They chose not to do so.  Considering the Supreme Court’s emphasis in Obergefell on the importance of the marital relationship, legal significance must be given to a decision not to marry.  Electing not to marry when the opportunity is available should be deemed to fully contradict all allegations by anyone seeking rights to another person’s child based on the Mullins partial waiver theory.  Otherwise, marriage means far less than Obergefell indicates.”

Judge Acree goes on to quote Justice Anthony Kennedy’s flowery description of marriage, stating that this “sentiment permeates the opinion and uplifts the institution of marriage as few opinions have.  In my view, it is not an insincere capitulation to social pressure.  The opinion signals new the judiciary’s recognition of the majesty of marriage.”  Acree advocates a bright line test based on Obergefell, leaving out in the cold all unmarried same-sex partners, regardless of the quality or depth of their relationship with the child.  He argued that failure to adopt such a bright line test “will invite other individuals, and even groups, whether they cohabit with a biological or adoptive parent or not, to claim the partial waiver Mullins invented.”  And, as his parting shot, he wrote, “Although ‘it takes a village’ is a catchy cant, the nucleus of a family is not made up of loose threads of casual affection.  It is a tightly woven fabric of unifying love amongst two parents and their children.

Concurring, Judge Gene Smallwood, Jr., joined with Acree in encouraging the Kentucky Supreme Court to “revisit” the Mullins decision and overrule it, asserting that the dissenting opinion in Mullins had “proven true” and, quoting from a dissenting opinion in another case, wrote, “Mullins was decided as it was because of, and as a way of avoiding the pre-Obergefell prohibitions” on same-sex marriage.  “The conceived basis for the court’s opinion in Mullins no longer exists,” he insisted, urging that the state’s high court “reaffirm all prior precedence on this issue and return the legal standing of parenthood to the safe mooring of the law as guaranteed by the Supreme Court of the United States in Troxel v. Granville, 530 U.S. 57 (2000).”  Troxel held unconstitutional a state law that allowed third parties, such as grandparents, to seek visitation rights with children over the protest of their biological parents, affirming strong constitutional protection for the right of legal parents to exclude other adults from contact with their children.  Many state courts have distinguished Troxel from cases involving same-sex parent presenting facts similar to those in this case of Delaney v. Whitehead.

Teri Whitehouse is represented by Hugh W. Barrow of Louisville.  Tammie Delaney is represented by Louis P. Winner and Kristin M. Birkhold, also of Louisville.  One would anticipate an appeal to the Kentucky Supreme Court, and the case cries out for LGBT rights movement participation, since an overruling of Mullins could endanger the parental rights of numerous unmarried co-parents in Kentucky.

 

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Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

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Supreme Court May Decide Another Gay Wedding Cake Case

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

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Illinois Federal Court Allows Discharged Gay Organist to Pursue ADA Hostile Environment Claim against Archdiocese of Chicago

U.S. District Judge Edmond E. Chang ruled on September 30 that Sandor Demokovich, a church organist and choir director who was fired from his position at St. Andrew the Apostle Parish, Calumet City, in the Archdiocese of Chicago, after marrying his same-sex partner, may pursue a hostile environment disability harassment claim against his former employers under the Americans with Disabilities Act (ADA). Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill.).  In previous motion practice, Judge Chang found that Title VII and state and local antidiscrimination claims against the defendants for discriminatory discharge because of his sexual orientation and marital status are barred by the “ministerial exception” recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  In this ruling, he found that claims of hostile environment harassment because of the plaintiff’s sex, sexual orientation and marital status are also barred, due to Free Exercise and Establishment Clause concerns.

Demkovich began working as Music Director, Choir Director and Organist at St. Andrew in September 2012, and was fired in September 2014. His immediate supervisor, Reverend Jacek Dada, St. Andrew’s pastor, knew that Demkovich was gay and that he was engaged to another man, and, according to Demkovich’s allegations, subjected him to abusive and harassing behavior, which built to a crescendo as the date of Demkovich’s impending wedding approached.  Witnesses averred that Dada told them he would fire Demkovich if Demkovich married, and he was true to his word.  In addition, Demkovich, who had an obvious weight problem traceable to his struggles with diabetes, also suffered under Dada’s unwelcome comments about his weight and medical condition.  “Reverend Dada made harassing remarks about Demkovich’s weight, often urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed to lose weight because Dada did not want to preach at his funeral,” wrote Chang, summarizing the allegations in the complaint.  “Dada also repeatedly complained about the cost of keeping Demkovich on the parish’s health and dental insurance plans because of his weight and diabetes.  In 2012, when Demkovich declined a dinner invitation from Dada because he did not have his insulin with him, Dada asked if Demkovich was diabetic and told him that he needed to ‘get his weight under control’ to help eliminate his need for insulin.”

Being an organist and choir director seems to be a profession that attracts gay men, to judge by the number of cases we have seen over the years, including some of the earliest sexual orientation discrimination cases. Lawsuits challenging dismissals of gay church organists and choir directors almost invariably founder on the courts’ solicitude for defenses based on the First Amendment protection of the decisions by churches about whom to employ in positions directly implicated in carrying out their religious mission, and there is little disagreement among those judges who have faced the question that a church organist and choir director plays a ministerial role in the life of a church.  As to that, Judge Chang found that Demkovich’s concession that his is a “minister” for this purpose precludes his pursuit of wrongful discharge discrimination claims, whether premised on Title VII and the ADA or similar state or local laws, based on the Supreme Court’s determination that the government should never be involved in telling a church whom to employ as a minister.

However, Chang found, the Supreme Court’s Hosanna-Tabor case was a discharge case, and can be read to be limited to discrimination claims with respect to tangible employment issues, such as hiring, promotion, assignments, compensation. The Court spoke in that case about the right of a church to decide whom to employ as its minister, but not necessarily how that individual would be treated based on characteristics other than their religion, as to which Title VII provides for an express exception allowing religious institution employers to establish religious criteria for employment.  On the other hand, he found, one must resort to circuit court precedent to determine whether the ministerial exemption should also bar hostile environment harassment claims by a ministerial employee against a religious employer.  Since these claims involve “intangible” harms, he concluded that it was possible that the ministerial exception does not apply to them.  Instead, on a case-by-case basis, the court would have to determine whether allowing a hostile environment claim to go forward would raise significant 1st Amendment free exercise or establishment concerns.

As to this, he concluded, given the Catholic Church’s well-known public opposition to same-sex marriage, alleging a hostile environment based mainly on adverse comments by a supervisor about an employee’s proposed same-sex marriage would intrude unduly into the 1st Amendment rights of the church, thus ruling out that claim as well. “Although the ministerial exception does not bar Demkovich’s hostile-environment claims (to repeat, he does not challenge a tangible employment action), the Court concludes that litigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion.”  He noted that defendants offered a “religious justification for the alleged derogatory remarks and other harassment: they ‘reflect the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage,’” he wrote.

“Whether Catholicism in fact dictates opposition to same-sex marriage is not subject to court scrutiny,” wrote the judge, quoting 7th Circuit authority to the effect that “once the court has satisfied itself that the authorized religious body has resolve dthe issue, the court may not question the resolution.”  Furthermore, he observed, the Church’s “official opposition to gay marriage is commonly known (nor does Demkovich question it), and there is no reason to question the sincerity of the Archdiocese’s belief that the opposition is dictated by Church doctrine.”  Also, Demkovich’s ministerial role “weighs in favor of more protection of the Church under the First Amendment,” he continued, noting that “the church has absolute say in who will be its ministers.”  Chang pointed out several different ways in which allowing this hostile environment claim to proceed would raise Establishment Clause as well as Free Exercise Clause problems.

On the other hand, found Chang, there seemed no salient 1st Amendment concern in allowing Demkovich to pursue a hostile environment disability claim under the ADA, assuming that hostile environment claims are actionable under that statute – an issue not yet addressed by the Supreme Court.  Although the Church’s ministerial exemption bars suing it about a decision concerning whom to employ as a minister, wrote Chang, it was hard to discern a First Amendment right of the Church that would be abridged by questioning the disability-related hostile treatment of a minister whom the Church was willing to employee.

He wrote, “The Court first notes that the Seventh Circuit has not yet expressly decided that the ADA ever permits a hostile work environment claim. Instead, the Seventh Circuit has assumed – in both published and unpublished decisions – that there is such a claim under the ADA.  In light of the similarity between Title VII and the ADA in protection against discriminatory workplace conditions, this Court too assumes that the ADA does provide for hostile work environment claims.  When analyzing hostile work environment claims under the ADA, the Seventh Circuit has ‘assumed that the standards for proving such a claim would mirror those established for claims of hostile work environment under Title VII.”

Significantly, he noted, the Archdiocese “offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies [Rev. Dada]’s comments as ‘reflecting the pastor’s subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.’  But this is not a religious justification based on any Church doctrine or belief, at least as proffered so far by the defense.  So the disability claim does not pose the same dangers to religious entanglement as the sex, sexual orientation, and marital-status claims.  Nothing in discovery should impose on religious doctrine on this claim.  Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it.  The Religious Clauses do not bar Demkovich from pursuing the hostile-environment claims based on disability.”

The Archdiocese had also argued that “the alleged conduct was not severe or pervasive, was not physically threatening, and is not alleged to have altered the terms and conditions of Plaintiff’s employment,” but Chang noted that “this case is at the pleading stage, so Demkovich need not plead more facts than necessary to give the Archdiocese ‘fair notice of his claims and the grounds upon which those claims rest, and the details in his Amended Complaint present a story that holds together.’”  Judge Chang found that the allegations thus far were sufficient to place a hostile environment claim in issue for purposes of defeating a motion to dismiss.

Thus, the bottom line is that defendants’ motion to dismiss was granted as to the hostile environment claims based on sex, sexual orientation, and marital status, but denied as to the claims based on disability.”

Demkovich is represented by Kristina Buchthal Regal of Lavelle Law, Ltd., Palatine, IL.

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Indiana Federal District Court Finds No 1st Amendment Protection for College Teacher’s Sexist, Racist, Homophobic and Islamophobic Classroom Comments

Ruling on cross-motions for summary judgment in a lawsuit against a state university by a tenured professor who was suspended after an investigation of classroom conduct and statements brought to light by student complaints, Senior U.S. District Judge James T. Moody ruled that the 1st Amendment did not protect, inter alia, certain statements the professor made about homosexuality. Poulard v. Trustees of Indiana University, 2018 U.S. Dist. LEXIS 167617 (N.D. Ind., Sept. 28, 2018).

Jean Poulard has taught political science at Indiana University Northwest Campus (IUN) for more than 30 years, earning tenure in 1990. On June 1, 2015, Gianluca DiMuzio, then chair of the political science department, in which capacity he looked at student course evaluations of department faculty, communicated to Ida Gillis, then Director of Affirmative Action for IUN, student evaluation comments raising concerns about Professor Poulard’s behavior and statements in the classroom. The student comment that first raised a red flag was that Poulard would “frequently voice his racist and sexist views” and that he was “obscenely flirtatious with his female students, often saying perverted things.”

Prof. Di Muzio also commented that he had personally observed Poulard kissing students on the hand and cheek. Gillis and DiMuzio extended their investigation over several years of student evaluations, uncovering a variety of incendiary classroom comments attributed to Poulard, among them a student writing, “I took great offense when he stated how wrong and disgusting it is to be gay and how terrible and messed up a child with same sex parents is going to be in the head.”  There was also a statement that “black people were destroying Chicago and his solution to crime would be a weekly hanging.”

When confronted with these statements in the ensuing disciplinary proceeding, Poulard denied making some statements, softened others (such as claiming he spoke in favor of capital punishment, not weekly hangings), but did not deny hugging and kissing students or his comments about gay people and gay parents.

Gillis wrote a report, supplemented by Di Muzio’s complaint, which was presented to the Vice Chancellor for Academic Affairs, who concluded that Poulard had violated the University’s Sexual Misconduct Code and Code of Academic Ethics, suspending him for a month without pay, placing a letter of reprimand in his personnel file, and requiring him to complete the University’s sexual misconduct training.

Poulard brought a federal suit, claiming breach of his tenured employment contract as well as violations of his constitutional rights to due process and freedom of speech. Judge Moody found that material fact disputes about when the University began to include a disclaimer of contractual effect in its Academic Handbook precluded summary judgment on the breach of contract claim, but rejected the due process claim, finding that the procedures leading up to the Vice Chancellor’s ruling comported with standards of procedural fairness.

As to the First Amendment claim, and particularly the comments about gays and gay parents, Moody found no 1st Amendment protection for Poulard’s remarks. Although some of his statements, for example, “regarding gays, Muslims, and African Americans and crime, could potentially be matters of public concern,” wrote Moody, that was only one factor in applying the Supreme Court’s Pickering standard governing public employee speech, especially as applied in the 7th Circuit under Piggee v Carl Sandburg College, 464 F. 3d 667 (2006).  “Applying a balancing test,” he wrote, “the Seventh Circuit found that the instructor’s interest in making comments regarding religion and homosexuality were not protected when balanced against the school’s interest in the instructor’s adherence to the subject matter of the course she was hired to teach (which in that case was cosmetology).”

Moody continued, “In the case at hand, [Vice Chancellor] McPhail specifically restricted plaintiff’s speech out of concern for ‘developing among students respect for others and their opinions.’ The court agrees with McPhail that IUN had strong interests in restricting plaintiff’s statements in order to preserve respect for the student body, harmony among the IUN population, and to prevent the exclusion and isolation of the minorities targeted by plaintiff’s speech.  McPhail also concluded that the statements were not germane to the topic of the class.  However, plaintiff argues that his case can be distinguished from Piggee on this issue, because, since he teaches a political science course, his statements and comments were within the scope of the course.  The court disagrees.”

“It is true that the teacher in Piggee taught cosmetology which was even further off topic from the instructor’s speech,” Moody explained. “However, here, plaintiff’s course was a course involving Latin American politics, an issue that was not addressed in any of the statements at issue.  Second, the court recognizes that faculty members have some right to engage in academic debates, pursuits, and inquiries.  And being a political science course should give professors some leeway to delve into topical or hot-button social and political issues.  However, statements about gays being ‘disgusting,’ criticizing religious (Muslim) clothing, and asserting that African Americans should be ‘hung,’ are not topical statements and do not invoke hot-button issues.  They sound much more like harassing statements that IUN has a strong interest in eliminating in order to foster an inclusive learning environment for all students, including gays, Muslims, and African Americans.  Accordingly, when performing the Pickering balancing test, the court concludes that the interests of IUN outweigh Poulard’s interests.”  Thus, the court granted defendants’ motion for summary judgment as to the 1st Amendment free speech claim.  Judge Moody also found that a separate free speech claim under the Indiana Constitution could be resolved on the same analysis.

Judge Moody was appointed to the bench by President Ronald Reagan.

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Federal Court Orders Wisconsin to Cover Transition Medical Costs for Transgender State Employees

U.S. District Judge William M. Conley ruled on September 18 in Boyden v. Conlin, 2018 WL 4473347, 2018 U.S. Dist. LEXIS 158491 (W.D. Wis.), that Wisconsin’s refusal to cover “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” for its transgender state employees violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 and in the Affordable Care Act, as well as the Equal Protection Clause of the 14th Amendment.  Conley had previously awarded a preliminary injunction to transgender Medicaid participants in Wisconsin who were seeking similar coverage under that program, having concluded that they were likely to prevail on the merits of their claims. See Flack v. Wisconsin Department of Health Services, 2018 WL 3574875 (W.D. Wis., July 25, 2018). In this new decision, Judge Conley was ruling on motions for summary judgment by the plaintiffs and the defendants, so this is a final ruling on liability, although there may be a trial on damages if the state doesn’t settle the case.

A Wisconsin statute mandates the state to provide insurance coverage to “aid public employees in protecting themselves against the financial hardships of illness, thereby promoting economy and efficiency in public service by facilitating the attraction and retention of competent employees, by enhancing employee morale and by establishing equitable benefit standards through public employment.” A Government Insurance Board (referred to as GIB) adopts “Uniform Benefits” for the state’s Group Health Insurance Plan, which then contracts with private insurance companies to provide the mandated benefits to state employees.  Employees and their government employers pay money into an Employee Trust Fund (ETF) to finance the benefits.

The exclusion of coverage for hormones and surgery for gender transition has been part of the “Uniform Benefits” standard in Wisconsin in some form since 1994, when GIB adopted the exclusionary language, explaining that such benefits and services were generally deemed by insurance companies to be “experimental and not medically necessary.” The defendants claim that the exclusion of coverage is not total — that hormone treatment for gender dysphoria is covered “unless specifically made a course of treatment leading to or involving gender conforming surgery,” but there is some dispute about how this is interpreted and applied in practice.

“Still,” wrote Conley, “there is no dispute that mental health counseling as a stand-alone treatment for gender dysphoria is covered, whereas hormone therapy involving gender reassignment surgery is not covered; and there is no dispute that the surgery itself is not covered.” Furthermore, the “Uniform Benefits” also excludes from coverage “treatment, services, and supplies for cosmetic purposes,” with the explanation that “psychological reasons do not represent a medical/surgical necessity.”

During the Obama Administration, it appeared as if GIB might change its position, as the Department of Health and Human Services (HHS) was taking the position that the Affordable Care Act’s ban on sex discrimination in insurance benefits would include gender identity discrimination, but the guidance HHS put out stopped short of stating this meant the gender-confirming surgery must be covered. There seemed a possibility that GIB would authorizes changes for the plan year beginning January 1, 2017, but the state’s Republican administration was pressing GIB to find economies rather than expanding existing benefits.

The ETF staff at first recommended that the exclusion be removed, based on the possibility that the ACA would require coverage, and at its July 12, 2016, meeting, GIB voted unanimously to amend the uniform benefits to remove the exclusion effective January 1, 2017. But GIB subsequently reconsidered that decision at the request of the Governor’s Office, and on December 29, 2016, voted to reinstate the Exclusion if four contingencies were satisfied.  A Deputy Attorney General had sent GIB a memo arguing that the federal HHS rules interpreting the ACA to cover gender identity discrimination were “unlawful,” a position that a group of states including Wisconsin had taken in a lawsuit filed in the federal district court for the Northern District of Texas.  Subsequently, the federal district judge there issued a nationwide injunction, blocking HHS from enforcing its gender identity discrimination policy.

Also, of course, after Donald Trump was elected in November 2016, bringing in Republican majorities in both houses of Congress, Republican leaders announced their goal of repealing the ACA, so it appeared likely that the exclusion might not need to be lifted to comply with that law.

At a GIB meeting on December 13, 2016, an attorney from the Wisconsin Department of Justice recommended that “the Board follow the law as it currently stands,” noting that Wisconsin was a plaintiff in the Texas lawsuit. Ultimately, one of the contingencies that GIB embraced for rescinding their prior decision on December 30 would be the federal court in Texas issuing its injunction, the other contingencies being compliance with Wisconsin statutes, renegotiation of contracts with insurance companies that maintained or reduced premium costs, and receiving an opinion from the state’s lawyers that “the action taken does not constitute a breach of board members’ fiduciary duties.”  In January 2017, the administrators concluded that the contingencies justifying rescinding the prior vote had been met.

For Judge Conley, however, this political by-play was essentially irrelevant to his ruling on the claims by the plaintiffs, transgender state employees whose federal statutory and constitutional rights were being violated. He focused on the reasons articulated by GIB members for their votes, which varied from person to person.  Some were concerned about the Texas court’s preliminary conclusion that the Obama Administration’s interpretation of ACA was unlawful.  There was some discussion of costs, but nobody would testify that specific numbers were discussed by GIB, and several members testified that there was no discussion about the medical necessity or safety of the transition procedures, although in this litigation the state presented “expert testimony” (which Judge Conley found deficient) questioning both of those issues.

One GIB member testified that he voted to remove the exclusion because he “viewed the exclusion as discriminatory and supports the right of transgender individual to get the healthcare they need” and that “it’s not costly to add it to the group plan.” This proved to be an apt prediction of what Judge Conley ultimately found, based on the testimony of experts on behalf of the plaintiffs.

Wisconsin is within the 7th Circuit Court of Appeals’ jurisdiction.  The 7th Circuit’s rulings are binding on Judge Conley’s District Court in Madison, the state capital.  And, he found, the 7th Circuit has emerged as a champion of LGBT rights with its 2017 decisions in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), and Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).  In Hively, the appeals court held that discrimination because of sexual orientation is prohibited by Title VII’s ban on sex discrimination in employment.  In Whitaker, the court ruled that discrimination because of gender identity is prohibited by Title IX’s ban on sex discrimination in public schools.  Putting them together, Conley found it easy to conclude that gender identity discrimination violates Title VII as well, despite an old 7th Circuit decision, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984),  ruling out such claims, which has never been explicitly overruled by the circuit court.

He wrote that “all individuals, whether transgender or cisgender, have their own understanding of what it means to be a woman or a man, and the degree to which one’s physical, sexual characteristics need to align with their identity. For example, a cisgender woman who has a mastectomy for treatment of breast cancer may opt not to have reconstructive surgery.  That choice, however, may be untenable to another cisgender woman placed in the same position.  Similarly, a transgender woman may require breast augmentation to address her gender dysphoria, whereas another transgender woman may not.  Nothing about offering coverage without regard to one’s natal sex forces individuals to have surgery to conform their physical traits to their identified gender.  Instead,” he wrote, “the Exclusion implicates sex stereotyping by limiting the availability of medical transitioning, if not rendering it economically infeasible, thus requiring transgender individuals to maintain the physical characteristics of their natal sex.  In other words, the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.  In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”

In other words, this judge really “gets it.” The opinion exhibits a profound understanding of why this challenged Exclusion is really a form of sex discrimination, which is outlawed by the relevant statutes.  Furthermore, since it is sex discrimination in a government policy, it is subject to “heightened scrutiny” under the Equal Protection Clause, throwing the burden on the government to show that the policy substantially advances important state interests.  And, as to that, Judge Conley found that the evidence presented by the state as to its purported reasons for rejecting ETF’s recommendation falls short.

“Not only is the record devoid of any evidence to show that GIB members voted as they did for cost or efficacy reasons,” he wrote, “the evidence is overwhelming that the actual or genuine reason for the reinstatement [of the Exclusion] had to do with the DOJ’s guidance – specifically, the belief that the Texas court’s entry of an injunction absolved defendants of any legal obligation to provide coverage.” But, confusingly, the defendants did not put this forward as their reason in support of their motion for summary judgment, instead pointing to costs and efficacy, as to which their expert’s supporting testimony was woefully deficient.  Indeed, Judge Conley questioned whether he actually qualified as an “expert” at all.  “Accordingly,” he wrote, “the court concludes that the Exclusion does not survive heightened scrutiny,” and thus is unconstitutional.

While Judge Conley concluded that the individual named government defendants who were sued in their official capacity were entitled to qualified immunity against personal liability, since thus far there is no 7th Circuit or Supreme Court precedent holding that the exclusion is unconstitutional, this is no bar to equitable and monetary relief for the plaintiffs against the state agencies who made the challenged decisions.

This doesn’t conclude the case before Judge Conley. In the final part of his opinion, titled “Trial Plan,” he laid out the various claims for relief that plaintiffs can pursue at trial, having won a summary judgment that the Exclusion violates their statutory and constitutional rights.  “While the court will determine any equitable relief at trial, as well as award of attorneys’ fees and costs,” he wrote, “defendants have demanded a jury trial as to plaintiffs’ claims for compensatory and/or punitive damages, which is their right.  And so a jury there shall be.”  The court scheduled a pretrial conference for the last week in September.

The role of the jury in such a case is to determine that amount of money to which the plaintiffs are entitled for the violation of their rights. The state is undoubtedly counting on a jury of taxpayers to be revolted by the thought of awarding substantial sums to transgender plaintiffs, but they should not be so confident, as public opinion has been swinging behind the transgender rights movement. The judge will determine appropriate attorneys’ fees and costs to award to plaintiffs as the prevailing parties on the merits of their claims.

On September 24, Judge Conley issued an Opinion and Order setting a trial date on damages of October 9, 2018, and ruling on motions in limine and related motions.  Most notably, he found moot a motion to exclude testimony by the defendants’ experts, inasmuch as their testimony went to the issues of cost and efficacy, which were no longer in play as a result of the grant of summary judgment on the merits to plaintiffs. See 2018 U.S. Dist. LEXIS 162757.

Plaintiffs Alina Boyden and Shannon Andrews are represented by John Anthony Knight of the ACLU Foundation, Chicago, Laurence J. Dupuis, of the ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, and local counsel Michael Godbe and Nicholas E. Fairweather, of Hawks Quindel, S.C., Madison, WI.

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Federal Court Orders State Department to Issue Gender-Neutral Passport to Intersex Applicant

U.S. District Judge R. Brooke Jackson has ordered the U.S. State Department to issue a gender-neutral passport to Dana Alix ZZyym, who was identified as female at birth but who rejects the gender binary, identifying neither as male nor female. Lambda Legal represents Zzyym in this long-running lawsuit in the federal trial court in Denver.  Zzyym v. Pompeo, 2018 U.S. Dist. LEXIS 160018, 2018 WL 4491434 (D. Colo., September 19, 2018).

 

Zzyyym is described by Judge Jackson as “an intersex individual” who submitted a passport application in September 2014. In common with many intersex people, Zzyym uses the pronouns they, them, and their, but Judge Jackson skirts the pronoun issue by using ZZyym’s gender-neutral first name throughout the opinion in place of pronouns.

 

“Instead of checking the box labeled ‘M’ for male or ‘F’ for female on the application form, Dana instead wrote ‘intersex’ below the ‘sex’ category,” wrote Jackson. “By separate letter Dana informed the passport authorities that Dana was neither male nor female.  The letter requested ‘X’ as an acceptable marker in the sex field to conform to International Civil Aviation Organization (‘ICAO’) standards for machine-readable travel documents.  It is undisputed that in every other respect Dana is qualified to receive a passport.”

 

But the State Department denied the application. At the bureaucratic level at which passports are processed, there is no flexibility.  One must selection M or F or be denied.  In the denial letter, the Department said it would issue Dana a passport listing their gender as “female” because that was the sex listed on the driver’s license that they submitted to prove Dana’s identity.  Or, said the Department, Dana could have M listed if they provided “a signed original statement on office letterhead from your attending medical physician” attesting to their “new gender.”  Obviously, the low-level bureaucrats at State had trouble getting their heads around the concept of intersex, confusing it with transgender.

 

Dana submitted a letter appealing this denial, including “two sworn statements by physicians from the United States Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, that verified Dana’s sex as ‘intersex.’” Dana also personally presented their case at the Colorado Passport Agency, explaining why they did not want their passport to indicate M or F.

 

But the Department persisted, explaining that it could not issue a passport unless the gender box was checked off as M or F. Why?  Because.  The form requires it.  Dana requested reconsideration, which was turned down in April 2015.

 

This led to the lawsuit, originally against Obama Administration Secretary of State John Kerry (in his official capacity), now against Michael Pompeo, as well as Director Sherman Portell of the Colorado Passport Agency. The lawsuit made multiple claims for relief, foremost arguing that the Department’s conduct was “arbitrary and capricious” in violation of the Administrative Procedure Act, which requires that agency action be undertaken for a reason.  The lawsuit also argued that by imposing this gender choice requirement the Department exceeded the authority delegated to it by Congress in the statutes governing issuance of passports, and that it violated 5th Amendment Due Process and Equal Protection rights. As relief, Zzyym ask the court to issue a “writ of mandamus” to compel the Department to issue a passport “accurately reflecting the plaintiff as intersex.”

 

On November 16, 2016, Judge Jackson ruled that “the agency’s decision-making process was not rational based upon the evidence in the record,” but rather than issue the requested writ of mandamus, he decided to send the case back to the Department for “reevaluation of its gender policy.” Too late, unfortunately, as this ruling was issued the week after Donald Trump’s election as president.  So it eventually fell into the lap of the new Trump-appointed leadership of the State Department, and one can only speculate about the puzzlement and consternation it may have caused in the new fact-free world of the Trump Administration.

 

“In March 2017, while the Department was reevaluating the policy, Dana requested that the Department issue a full-validity or temporary passport bearing an ‘X’ or other third-gender marking in the sex field in order for Dana to attend an international conference,” wrote Judge Jackson. But the Department refused. Why?  Need you ask?  No reason, just no.  The refusal letter did state, however, that the Department “would soon complete its review of the policy,” but you know where this leading.  On May 1, the Department again denied Dana’s application, issuing a memorandum purporting to “explain” its decision, but the explanation really just boiled down to a version of “that’s the way it is.”

 

Dana moved to reopen the case and their counsel filed a supplemental complaint to reflect the Department’s May action, seeking “injunctive relief and a judicial declaration that the State Department has exceeded its authority under the Administrative Procedure Act and has violated the Fifth Amendment to the U.S. Constitution.” In his ruling of September 19, Judge Jackson explains that there is no need to address the constitutional claim because the matter can be resolved in ZZyym’s favor under the APA.

 

Judge Jackson noted that U.S. passports did not record gender prior to 1976, when the Department “changed course and added a male and female checkbox. The applicant is required to choose one or the other.  In my order dated November 22, 2016, I found that the administrative record did not show that the Department’s decision-making process that resulted in the gender policy was rational.  The reasons provided by the Department for the policy failed to show a reasoned decision-making process and instead seemed to be ad hoc rationalizations for the binary nature of the gender field.”

 

The new memorandum issued by the Department fared no better. In the memo, the Department showed awareness that some other countries have accommodated non-binary individuals by using an “X” on travel documents, and they can be scanned by the standard passport reading equipment in use at border crossings and airports.  Now the Department advances five “reasons” for its “gender policy.”

 

First, the Department argued that requiring a gender selection of M or F helps to ensure the accuracy and verifiability of a passport holder’s identity, for which the Department relies on state-issued documents, such as birth certificates and driver’s licenses. Secondly, the sex of a passport applicant is a “vital data point in determining whether someone is entitled to a passport” since “the Department must data-match with other law enforcement systems” all of which “recognize only two sexes.”  Thus, State argues, “continued use of a binary option for the sex data point is the most reliable means to determine eligibility.”  The Department also argued that “consistency of sex data point ensures easy verification of passport holder’s identity in domestic contexts.”  In essence, they argue that introducing a third sex marker on passports could “introduce verification difficulties in name checks and complicate automated data sharing among these other agencies,” which would “cause operational complications.”  The Department also contended that “there is no generally accepted medical consensus on how to define a third sex.”  While acknowledging that people such as Dana exist, “the Department lacks a sound basis in which to make a reliable determination that such an individual has changed their sex to match that gender identity.”  This explanation suggests they don’t understand the difference between transgender and intersex.  Finally, they argued, they had to stick with the current policy because “changing it would be inconvenient.”  In other words, a totally bureaucratic response focused on technical convenience and unresponsive to the need to deal with individuals as they are.

 

“Looking at the proffered reasons and cited evidence provided by the Department,” wrote the judge, “I find that the Department’s decision is arbitrary and capricious,” and he went through the reasons step by step, explaining why they failed to show “rational decision making,” which is the minimal requirement under the APA to sustain an administrative decision. He showed how the earlier responses to Dana’s application undermined the explanations provided in the memorandum.  Even though M and F do not accurately identify Dana, the Department insists on using them, thus contradicting its explanation that it clings to the binary system for purposes of “accurate” identification of people.  And the judge found that the administrative record included data at every turn that contradicted the Department’s conclusions.

 

Most tellingly, there was never any real explanation as to why somebody’s sex needs to be indicated on their passport that would justify refusing to accommodate intersex people. “Apparently,” wrote Jackson, “the data field of ‘SEX (M-F)’ was recommended because experts thought ‘that with the rise in the early 1970s of unisex attire and hairstyles, photographs had become a less reliable means for ascertaining a traveler’s sex.”  Additionally, as naming conventions changed, relying on first names to identify sex became problematic.  An ICAO report from 1974 recommended adding the sex markers as an aid to identification, and at that time the recommendation was to add M-F as the indicators.  But since then the ICAO has modified its standards to use “X” for “unspecified,” so relying on the ICAO recommendation of 1974 no longer justifies refusing to use the “X”.

 

The court found that the Department contradicts itself by relying on the same sort of authorities to deal with transgender people’s passport applications as would be relied upon in transgender cases. Jackson pointed out that “the information relied upon in the administrative record also reflects a lack of consensus as to how individuals born intersex could be classified as either ‘male’ or ‘female,’” but “this has not prevented the Department from requiring intersex people to elect, perhaps at random, as it doesn’t seem to matter to the Department which one of those two categories Dana chooses.” The lack of a medical consensus is thus irrelevant to the Department’s current practices.

 

Finally, turning to the inconvenience and expense argument, Jackson notes that it is merely asserted without any data to back it up. “True,” he wrote, “common sense would tell anyone that altering a system will necessarily involve some effort and money.  However, the Department’s rationale here is the product of guesswork rather than actual analysis, and it does not rise to the level of reliable evidence that is needed to show that the Department’s policymaking was rational.”

 

Actually, Jackson concluded, the new memorandum “added very little” to what was presented to the court in 2016. Jackson also ruled against the Department on Zzyym’s argument that denying them a passport exceeded the Department’s delegated powers.  Congress has delegated to the Department the decision to deny passports for a variety of reasons, but, wrote Jackson, “The authority to issue passports and prescribe rules for the issuance of passports under 22 U.S.C. section 211a does not include the authority to deny an applicant on grounds pertinent to basic identity, unrelated to any good cause. . .”

 

“Because neither the Passport Act nor any other law authorizes the denial of a passport application without good reason,” concluded Jackson, “and adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason, the Department has acted in excess of its statutory authority.”

 

The court determined to grant Zzyym the injunctive relief they sought. “Dana has been pursuing a passport for close to four years now,” he wrote.  “I grant Dana’s request for injunctive relief and enjoin the Department from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.”  The judge concluded that a writ of mandamus was not necessary, as injunctive relief would suffice.  Will the Trump Administration comply or pursue a pointless appeal?

 

Advocacy for Dana drew in several pro bono cooperating attorneys, local counsel from Denver, and Lambda Legal attorneys Camilla Bronwen Taylor, M. Dru Levasseur, and Paul David Castillo.

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