Art Leonard Observations

Federal Court Finds City of East Lansing Violated Free Exercise Right of Farmer Excluded from City’s Farmer Market Because His Wedding Rental Business Excludes Same-Sex Couples

August 23, 2023

U.S. District Judge Paul L. Maloney granted summary judgment after a bench trial to Country Mill Farms (CMF) and its owner, Stephen Tennes, in their First Amendment Free Exercise lawsuit against the City of East Lansing, Michigan, which excluded CMF from the East Lansing Farmers Market (ELFM) because the company’s wedding hosting business was closed to same-sex couples. Country Mill Farms, LLC v. City of East Lansing, 2023 WL 5345236, 2023 U.S. Dist. LEXIS 146493 (W.D. Mich., Aug. 21, 2023).

The court premised its ruling on the Supreme Court’s decision in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), which held that an anti-discrimination policy that was part of a discretionary process (i.e., to which there were discretionary exceptions) was not a law of “general applicability” and thus was subject to strict scrutiny when a person was excluded from a government benefit because of their religious beliefs. That is, the government would have to show a compelling interest not to exercise its discretion to excuse compliance with the challenged policy. In Fulton, the Supreme Court found that the city of Philadelphia failed to show a compelling interest that justified not making an exception to its anti-discrimination policy for Catholic Social Services, which would not open its foster care vetting service, operated by contract with the city, to same-sex couples. In this case, the benefit is being able to participate in the Farmers Market program operated by the City of East Lansing, Michigan. The city has an ordinance prohibiting discrimination because of sexual orientation by places of public accommodation. Country Mill Farms LLC makes its facilities available for wedding celebrations, but its proprietor, Stephen Tennes, will not rent the premises for same-sex weddings due to his religiously based objections to same-sex marriage.

According to the facts found by Judge Maloney, Mr. Tennes operates his corporation as a family farm, selling fruits and vegetables. He is the sole owner and manager of the company. He adopted as a mission statement for his business to “glorify God by facilitating family fun on the farm and feeding families.” The court found that Tennes “stopped running haunted houses, something his father started, because the practice was not in line with his faith. He has declined to host bachelor and bachelorette parties for the same reason.” The wedding business is a significant part of the farm’s activities, the court noting that CMF has hosted as many as forty-four weddings in a year. “Tennes considers the celebration of weddings at CMF as ‘a calling from God for us to serve.’ His religious belief is that marriage is between a man and a woman. “Because of this sincerely held religious belief,” wrote Judge Maloney, “Tennes will not rent the venue for same-sex weddings.”

For “a number of years, through 2016,” CMF was invited to participate in East Lansing’s Farmers Market, which is run by the city government and has limited space for vendors. Most of the spots are filled by invitation, and vendors are supposed to comply with published Guidelines. A planning committee decides which vendors to invite “based on the guidelines and past experience with the vendor.” CMF received an inquiry on its social media website in August 2016 concerning its position on LGBT groups and responded that due to its sincerely held religious beliefs, “we do not participate in the celebration of a same-sex union. We have and will continue to respectfully direct wedding inquiries to another mid-Michigan orchard that has more experience hosting same sex weddings.” This statement came to the city’s attention. “In late August, the city reached out to CMF and, because of the social media message concerning same-sex weddings, asked it not to attend the ELFM the following weekend.” CMF responded to this by announcing it would no longer book future wedding ceremonies, upon which it was allowed to attend that weekend and for the rest of the 2016 season.

However, evidently missing the wedding business and its revenue, CMF decided to resume booking weddings, but not same-sex weddings, which it announced in December 2016. The city responded to this announcement by adding a new subsection to the published Guidelines for ELFM, stating that vendors should comply with the civil rights ordinance and the public policy against discrimination, and the planning committee did not invite CMF to participate in the 2017 ELFM. CMF then filed an application to participate, which the city denied, explaining in a latter to CMF that its “business practices” did not comply with the city’s public policies, and that its December social media announcement was a violation of the ordinance and the ELFM guidelines. Thus provoked, CMF and Tennes filed suit against the city.

The court found that the city’s decision to deny CMF’s application “substantially burdened Plaintiffs’ free exercise of religion,” and this decision was “motivated by religious beliefs. Plaintiffs were forced to choose between their religious beliefs and a government benefit for which CMF was eligible.”

The court found that the 2017 Vendor Guidelines for the ELFM “allow for the exercise of discretion in at least two ways, discretion that undermines the general applicability of the Guidelines. First, the Guidelines allow for discretion in selecting vendors for invitation and for approving annual vendor applications.” The guidelines list 11 factors to be considered by the planning committee in deciding whom to invite and which applications to approve, only one of which is complying with the city’s civil rights ordinances. The ELFM market manager testified at trial that the committee examines these factors “on a case-by-case basis to determine whether to invite or not invite a vendor,” and could decide not to invite based on any of the listed factors. The City Manager testified that the Guidelines “did not include any indication about how to weigh the different factors,” including the factor of compliance with the civil rights laws. Judge Maloney concluded that “this functionally unfettered discretion means that the Vendor Guidelines are not generally applicable and function as a mechanism for individualized decisions.” The Guidelines also expressly state that the Market Manager may “grant exceptions and accommodations on an individual basis.” The court saw this as a “mechanism for individualized exemptions not functionally different from the policy in Fulton. And, the mere existence of the mechanism, not its exercise, ‘renders a policy not generally applicable.’”

Judge Maloney wrote that the provision on compliance with the civil rights law “is not generally applicable because it permits secular conduct through exemptions while prohibiting the same conduct motivated by religious beliefs.” For example, the city’s civil rights law “does not apply to private clubs or other establishments not open to the public” and “contains provisions that allow for discretionary exemptions,” such as “discretion to grant employment exemption for bona fide occupational qualifications” and reserving to the city a decision whether discrimination by a city contractor is a “material breach” of a city contract. The judge runs through all the provisions of the city’s civil rights ordinance that appear to provide discretion to treat various breaches as not material (and thus not disqualifying).

Furthermore, applying the strict scrutiny test, the court found that the city had “not established that the decision to deny CMF a vendor license is narrowly tailored to meet a compelling governmental interest.” The court observed that due to the discretionary exceptions that could be made under the laws, the city could to business with an entity that discriminates on the basis of sexual orientation, and had “not offered any particular justification for enforcing the nondiscrimination ordinance against Plaintiffs. Nor has Defendant explained why it declines to offer Plaintiffs an exemption from the nondiscrimination ordinance when the ordinance provides objective and discretionary exemptions to other business entities.”

The court also rejected the city’s argument that the plaintiffs “were not engaged in conduct associated with the practice of their religion,” pointing out the Supreme Court’s broad interpretation of the scope of free exercise. Having found that the city’s exclusion of CMF from the farmers’ market imposed a substantive burden on free exercise which had not been justified by a compelling reason, the court granted judgment to the Plaintiffs on their free exercise claim. This Order does not discuss what remedy the court might impose to enforce its judgment, but the clear signal of the opinion is that CMF’s future participation in the farmers’ market cannot be conditioned on its agreement to host same-sex weddings.

CMF is represented by attorneys associated with Alliance Defending Freedom. (No surprise there!) The Michigan Catholic Conference filed an amicus brief in support of CMF. Judge Maloney was appointed by President George W. Bush.

Legal Issues | Tagged Alliance Defending Freedom, anti-disrimination law, Country Mill Farms v. City of East Lansing, discretionare exceptions to civil rights laws, District Judge Paul L. Maloney, East Lansing, First Amendment Free Exercise Clause, Free Exercise of Religious, Fulton v. City of Philadelphia, generally applicable laws, MI, Michigan, public accommodations law, religious exemption from complying with civil rights law, sexual orientation discrimination, U.S. District Court, wedding venue refusing service to same-sex couples, Western District of Michigan | Comment

Federal Appeals Court Approves Preliminary Injunction Blocking Idaho Ban on Trans Women Participating in Women’s Sports

August 22, 2023

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9^th Circuit upheld a preliminary injunction that Idaho Chief U.S. District Judge David C. Nye issued several years ago blocking the implementation of Idaho’s “Fairness in Women’s Sports Act,” which was enacted in 2020. Hecox v. Little, 2023 U.S. App. LEXIS 21541, 2023 WL 5283127 (August 17, 2023). Judge Nye has yet to issue a final ruling on the merits of this case. Circuit Judge Kim Wardlaw, who was appointed by President Bill Clinton, wrote the panel decision.

The plaintiff is Lindsay Hecox, a transgender woman who was enrolled at Boise State University. She claims that the law violated Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14^th Amendment by preventing her from trying out for the university’s women’s track team. Judge Nye based the preliminary injunction solely on Hecox’s Equal Protection claim.

After Judge Nye issued the preliminary injunction, Hecox was permitted to try out for the team, but she failed to make the team and subsequently withdrew temporarily as a student from Boise State. The district court and the court of appeals rejected the state’s claim that this withdrawal mooted the case, noting that it was temporary and that Hecox asserted she would be returning to the school in the future and hoped to try out again.

Idaho’s ban was the first such law to be enacted in the nation, but over the ensuing three years the number of states to have passed such categorical bans has reached twenty-one. Several of them have challenged in lawsuits by transgender students. In a footnote, Judge Wardlaw commented, “Other federal and state courts have enjoined transgender sports bans, and no categorical ban has yet been upheld on appeal.” Idaho’s ban went further than the others by authorizing people with any doubts about a women’s sports competitor’s bona fides to challenge them, placing the burden on the competitor to provide proof through a doctor’s certification that she was a “biological woman.” This provision came in for particular criticism by a majority of the 9^th Circuit panel as a clear instance of sex discrimination, since a similar challenge was not authorized concerning the bona fides of any male competitors. Circuit Judge Morgan Christen, who agreed to affirm the granting of an injunction, diverged from the majority’s reasoning as to this issue.

In line with Judge Nye’s approach, the panel opinion rests solidly on Equal Protection analysis, not directly addressing the fraught question whether Title IX’s ban on sex discrimination by educational institutions extends to gender identity discrimination. However, the court reported in a footnote the Biden Administration’s opinion that Title IX does apply to gender identity discrimination claims by students, and citing other court decisions to that effect.

Wardlaw’s opinion provides a detailed account of the history of enactment of H.B. 500, as the measure was then known, clearly showing that this was, at the time, a bill in search of a reason for being. When it was enacted by the legislature, there had been no reported instances of transgender women in Idaho seeking to compete in women’s scholastic sports. The enactment appears to have been a reaction to news reports, pumped up to a frenzy by conservative media outlets, about two transgender women competing with some success in women’s track events in Connecticut. Taking a calmer retrospective view, it should be apparent to competent lawyers that the measure raised serious constitutional issues. In fact, the state’s Attorney General cautioned the legislature that they were buying a lawsuit that they would probably lose, so the court’s ruling on preliminary relief was not unexpected.

The main issue for the Court of Appeals was whether Judge Nye had abused his discretion by granting the preliminary injunction based on his conclusion that the plaintiff was likely to be successful in her equal protection claim. Judge Wardlaw did a deep dive into the factual and constitutional analysis, concluding that many of the factual premises that the legislature embraced are faulty, and that a categorical ban on transgender participation misses the nuances of the facts available both then and now concerning the interests the legislature stated in the statute.

If the legislature meant to prevent cisgender women from being “displaced” from competitive sports by transgender women as it claimed, the court found that such displacement fears were unwarranted as a matter of simple arithmetic because transgender women wishing to compete in women’s sports are such a small number that it is highly unlikely that they would be “displacing” a substantial number of cisgender women.

As to the legislature’s asserted concern for fair competition, the court pointed out the faulty factual findings in the statute about competitive advantages for transgender women, and particularly its failure to account for the effect of transitional hormone treatment in reducing any competitive advantage a transgender woman might enjoy, especially when they transitioned early before experiencing male puberty. The legislature’s approach was insufficiently nuanced to survive heightened scrutiny, and there was no argument that in the 9^th Circuit discrimination because of sex or gender identity are both subject to heightened scrutiny under Equal Protection precedents. Under the heightened scrutiny analysis, the government has the burden to show that the challenged statutes substantially advanced an important state interest. The court found the government’s evidence for this unpersuasive.

The 9^th Circuit panel rejected the state’s argument that the case did not involve discrimination because of gender identity, finding that although the wording of the statute did not use such terms as “gender identity” or “transgender,” it was drafted in such a way as to exclude all transgender women, by using the heavily disputed concept of “biological sex” as a determinant of whether an individual is a man or a woman. The wording created a clear proxy for anti-transgender discrimination. This conclusion was bolstered by quotes from supporters of the bill, who clearly sought to bar transgender women from competing with cisgender women.

The panel reserved special ire for the provision authorizing challenges to an individual’s sex if they wanted to participate on a women’s team and somebody raised doubts about whether they were women within the meaning of the statute. The court found this procedure to be unduly intrusive, arguing that it singled out women – and particularly transgender women – and placed no symmetrical burden on men, providing no mechanism for challenging whether somebody who wanted to participate on a men’s team was male. The dissenting judge challenged some of this analysis, contending that the ability to make a sex challenge was determined not by the sex or gender identity of the challenged individual but rather whether they were competing on a women’s team. The mental gymnastics of this argument struck this writer as bizarrely formalistic.

The court concluded that even though the case was litigated as an as-applied challenge to the statute from the perspective of Lindsay Hecox, Judge Nye had not abused his discretion by broadly enjoining all implementation of the Act, not restricting his injunctive relief just to protect Hecox personally. Although normally preliminary injunctions are focused narrowly to preserve the rights of the identified plaintiffs in the case, the 9^th Circuit panel considered that the nature of this case justified the broader approach since it reflected facial problems with the law.

The dissenter agreed with much of the panel opinion but faulted the injunction as being insufficiently specific to meet the requirements of the Federal Rules of Civil Procedure. Delving into the majority’s discussion of the science, Judge Christen noted that the court had conceded that fairness could require the exclusion of some transgender women based on the facts and timing of their transition – most importantly, whether they were taking medications that lowered their level of endogenous testosterone, which was shown to be considered the most important element in conferring athletic advantage on males – and chided the majority for affirming the injunction without calling for it to be modified it to reflect these factual findings. Perhaps Judge Nye will react to this suggestion as the case proceeds. The panel’s conclusion indicated that the policies adopted by several sports regulatory bodies, which call for individualistic assessments rather than an across-the-board ban, would be consistent with the injunctive relief ordered by the court.

Hecox is represented by lawyers from Lambda Legal and the ACLU of Idaho, as well as volunteer attorneys from the private bar and local counsel in Idaho.

Legal Issues | Tagged 9th Circuit, ACLU of Idaho, Brad Little, Circuit Judge Kim Wardlaw, District Judge David Nye, Equal Protection Clause, Hecox v. Little, Idaho ban on transgender women competing in women's sports, Lambda Legal, Lindsay Hecox, preliminary injunction, Title IX, transgender girls in women's sports, transgender women, U.S. Court of Appeals, women's sports | Comment

Appeals Court Vacates Preliminary Injunction Against Alabama’s Ban on Gender-Affirming Care for Minors

A three-judge panel of the 11^th Circuit U.S. Court of Appeals issued an order on August 21 vacating the preliminary injunction that District Judge Liles C. Burke had issued in May 2022 to temporarily blocked the enforcement of that portion of Alabama’s “Vulnerable Child Compassion and Protection Act” that makes it a crime to provide puberty blockers and cross-sex hormones to persons under the age of 19 for purposes of confirming their transgender identity. Eknes-Tucker v. Governor, State of Alabama, 2023 WL 5344981, 2023 U.S. App. LEXIS 21942 (11^th Cir., Aug. 21, 2023), vacating 603 F. Supp. 3d 1131 (M.D. Ala. 2022). Judge Burke’s preliminary injunction was intended to preserve the status quo (availability of such treatments) while the case was being litigated.

Circuit Judge Barbara Lagoa, an appointee of President Donald J. Trump, wrote the opinion panel opinion, which was joined by Circuit Judge Andrew Brasher and District Judge Jean-Paul Boulee of the Northern District of Georgia, both also Trump appointees. District Judge Burke, who had issued the preliminary injunction, was also an appointee of President Trump. Judge Brasher also wrote a concurring opinion.

This ruling has a significance beyond Alabama, as district court judges in Florida and Georgia, whose rulings are subject to 11^th Circuit review, have previously issued preliminary injunctions against similar laws in those states. The Florida and Georgia governments can now be expected to ask those judges to vacate their preliminary injunctions, and they might well do so.

The plaintiffs in the Alabama case, a group of transgender minors, their parents, and “other concerned individuals,” can ask the full twelve-member 11^th Circuit bench to review this decision, but a grant of review seems unlikely, since seven of the active circuit judges are conservative Republican appointees, and “en banc” review requires a majority vote of the full circuit bench, which it is unlikely to receive.

There is already a split of federal circuit court opinion on the key legal issues involved in this decision, with the 8^th Circuit having affirmed a preliminary injunction against Arkansas’s ban of gender-affirming care for minors, and the 6^th Circuit haven taken a contrary view in a Tennessee case. A circuit split over questions of constitutional interpretation lays the groundwork for Supreme Court review, if the losing party before the court of appeals files a petition with the Supreme Court.

Because the 11^th Circuit’s ruling is not a final decision on the merits, however, which now continues to discovery and possible trial, the plaintiffs have an important strategic decision to make: whether to try to get the preliminary injunction reinstated or whether instead to go through a trial and an appeal of a ruling on the merits before seeking to involve the Supreme Court. Because this ruling creates the immediate danger that minors receiving gender-affirming care in Alabama may now have to go out of state to continue it, the plaintiffs may decide that further immediate appeals are necessary.

Judge Burke’s preliminary injunction was premised on his conclusion that the law violates the due process rights of the parents and the equal protection rights of the transgender minors in violation of the 14^th Amendment. He concluded that the liberty protected by the Due Process Clause includes the right of parents to provide gender-affirming care to their transgender children, and that the state’s law employs a classification based on sex and/or gender identity violating the Equal Protection Clause when it prohibits the use of puberty blockers or cross-sex hormones for the treatment of gender dysphoria but allows those medications to be used to treat premature or delayed puberty in cisgender minors. Under both constitutional provisions, he determined that “heightened” or “intermediate” scrutiny applied, putting the burden on the state to justify this intrusion upon individual rights by proving an important state interest that was substantially advanced by the law. Judge Burke found that the state’s arguments opposing the preliminary injunction failed to meet this test for purposes of ordering preliminary relief to preserve the status quo. But the 11^th Circuit panel found that Judge Burke had applied the wrong constitutional analysis.

In their view, under the substantive due process theory as most recently held by the Supreme Court in Dobbs v. Jackson Women’s Health Organization (the 2022 abortion decision overruling Roe v. Wade), the liberty interested protected by the due process clause is limited to the rights expressly identified in the Bill of Rights (first ten amendments of the Constitution adopted in 1791) and those unwritten rights that were widely recognized when the 14^th Amendment was adopted after the Civil War in 1867.

Judge Lagoa observed that the use of puberty blockers and cross-sex hormones for gender-affirming care was a late twentieth century phenomenon, so under the “historical” approach to recognizing protected liberty interests, there was no constitutional protection for the claimed parental rights so long as the state had a rational basis to enact the law. This is a lenient standard of judicial review that the court found was easily met in this case by the legislative findings recited in the statute, many of which were sharply refuted just a day earlier by a federal court in Georgia that issued a preliminary injunction against that state’s ban, which is now likely to be vacated on appeal unless the district judge agrees to do so in response to this 11^th Circuit opinion. Judge Lagoa observed that the plaintiffs had presented no historical evidence in support of their due process claim, and Judge Burke had not discussed the issue in his May 2022 preliminary injunction order (which, to be fair, predated the Supreme Court’s decision in Dobbs).

As to the Equal Protection analysis, the 11^th Circuit panel found that the Alabama statute does not establish a sex classification but, agreeing with Alabama’s attorneys, found that it established a classification by treatment and age, neither of which are suspect classifications. That is, the law forbids certain treatments for people below a certain age, regardless of whether they are male or female. As to the argument that the law discriminates because of gender identity, the panel noted recent 11^th Circuit opinions expressing doubt whether gender identity is a “suspect” or “quasi-suspect” classification for equal protection purposes. They rejected the plaintiffs’ argument that the Supreme Court’s Bostock decision of 2020 decided this issue when it held that an employer who fires an employee for being transgender has discriminated because of sex within the meaning of Title VII of the Civil Rights Act of 1974. Judge Lagoa insisted that this ruling was irrelevant to the case now before the court, as it turned on interpretation of the particular wording of an employment discrimination statute, not a constitutional provision. Unlike Title VII, the Equal Protection Clause expressly states only a generalized requirement that states afford all their residents “the equal protection of the laws,” the meaning of which is left to judicial interpretation. And neither the Supreme Court nor the 11^th Circuit has yet addressed the question of whether laws banning gender-affirming care for minors violate equal protection, thus undercutting Judge Burke’s conclusion that plaintiffs had shown a substantial likelihood of prevailing on the merits – a required element to support a preliminary injunction against the enforcement of a statute.

As with the due process issue, the court ruled that the equal protection issue did not require “heightened” or “strict” scrutiny and that the state could rationally decide to forbid such treatments to transgender minors as part of its power to protect the health and welfare of children against the risks incident to gender-affirming care. Alabama’s “legislative findings” in the statute emphasize risks without acknowledging benefits, and as the Georgia district court found on August 20, legislatures that have passed these bans have exaggerated the risks and failed to give weight to the benefits that parents have described.

Judge Brashers’ concurring opinion, while agreeing with the other members of the panel that the “rational basis” test is the correct test for this case, argued that the statute could even survive heightened scrutiny, in light of the important role of the state in protecting the health and welfare of children and the legislative findings spelled out in the statute concerning the risks of gender-affirming care.

The plaintiffs are represented by pro bono attorneys from King & Spalding working with GLBTQ Legal Advocates and Defenders, the Southern Poverty Law Center, the National Center for Lesbian Rights, and the Human Rights Campaign Foundation. The court received numerous amicus briefs including one backing plaintiffs from the major medical professional associations and one backing the state of Alabama from other states that have enacted similar laws.

Legal Issues | Tagged 11th Circuit, ban on gender affirming care for minors, Circuit Judge Andrew Brasher, Circuit Judge Barbara Lagoa, circuit split, cross-sex hormones, District Judge J.P. Boulee, District Judge Lisles Burke, Eknes-Tucker v. Governor of Alabama, estrogen, gender identity, gender-affirming care for minors, GLBTQ Legal Advocates & Defenders, Human Rights Campaign Founation, Human Rights Campaign Foundation, King & Spalding, National Center for Lesbian Rights, puberty blockers, Southern Poverty Law Center, testosterone, transgender minors, U.S. Court of Appeals, U.S. Court of Appeals for the 11th Circuit | Comment

Michigan Supreme Court Extends Equitable-Parent Doctrine to Same-Sex Couples

July 27, 2023

A divided Michigan Supreme Court ruled on July 24 that the “equitable-parent doctrine” should be extended to allow standing for a same-sex partner to seek custody of a child conceived and born before the U.S. Supreme Court decided in Obergefell v. Hodges, 576 U.S. 644 (2015), that same-sex couples have a constitutional right to marry. Pueblo v. Haas, 2023 WL 4717119, 2023 Mich. LEXIS 1124. However, to qualify for standing, the claimant will need to prove they would have married had state law permitted them to do so.

Carrie Pueblo and Rachel Haas were in a “long-term committed relationship, or domestic partnership, from the early 2000s until the early 2010s,” wrote Justice Megan K. Cavanagh for the court. Legal marriage was not available to them in Michigan. They participated in a “private civil commitment ceremony in June 2007 that was presided over by a priest and involved the exchange of rings and vows to take one another as life partners.” Shortly afterward, they decided to have a child, and Haas became pregnant through donor insemination, bearing a child in November 2008. The women separated several years later. Pueblo, who had been a de facto parent of their child, continue to have contact until Haas cut off her contact in 2017 and demanded that she cease contact with the child.

Pueblo filed suit in Kalamazoo in 2020, invoking the state’s Child Custody Act, seeking joint custody, parenting time, and child support. Haas challenged the suit on standing grounds, pointing out that Pueblo had no biological or adoptive connection to the child. The trial court granted summary judgment to Haas on that basis, and the state’s Court of Appeals affirmed in an unpublished per curiam opinion in 2021. The Michigan Supreme Court granted leave to appeal to address the question whether, in light of Obergefell, they should extend the equitable parent doctrine, which has previously been confined to different-sex couple situations, to same-sex couples, and if, so, what the “parameters of that extension should be.” See 510 Mich. 936 (2022).

“Pueblo argues that she has standing to seek custody under the equitable-parent doctrine,” wrote Justice Cavanagh. “We agree that Pueblo should have the opportunity to prove that she is entitled to assert her rights as an equitable parent.” Under the existing doctrine, “a spouse who is not a biological parent has standing to seek custody of a child born or conceived during their marriage when (1) the would-be equitable parent and the child acknowledge the parental relationship or the biological or adoptive parent has cultivated the development of the relationship over a period of time, (2) the would-be equitable parent desires to have the rights afforded a parent, and (3) the would-be equitable parent is willing to pay child support.” The court of appeals in this case rejected Pueblo’s equitable-parent argument on the ground that she was not a legal spouse of Haas, applying existing Michigan precedent.

Obergefell held that same-sex couples are entitle to the same “constellation of benefits” associated with marriage that different-sex couples enjoy. Therefore, it would follow, same-sex couples are entitled to the benefit of the “equitable-parent doctrine” because that is part of the “constellation of benefits” associated with marriage in Michigan. “As a matter of equity and constitutional law,” wrote Justice Kavanagh, “we are compelled to treat same-sex couples equally. Same-sex couples have the constitutional right to marry and to all the attendant benefits of marriage. Withholding the benefit of the equitable-parent doctrine from couples who were previously unconstitutionally prohibited from marrying would perpetuate the harms identified in Obergefell: that denying same-sex couples the same legal treatment in marriage and all the benefits afforded to opposite-sex couples demeans them, stigmatizes their children and families, and teaches society that they are inferior. Given the ruling in Obergefell, we cannot justifiably deny same-sex couples – who would have married before the arrival of the child but for unlawful prohibitions – the privilege of invoking the equitable-parent doctrine because of their sexual orientation.”

But, the extension of the doctrine is narrowed to certain requirements. “Therefore,” wrote Kavanagh, “we narrowly extend the equitable-parent doctrine to Pueblo and other similarly situated persons who were unable to marry during their same-sex relationships because of discriminatory and unconstitutional Michigan laws but who nonetheless developed de facto parent-child relationships with the children born or adopted by their same-sex partners during the time they would have otherwise been married.” The court stated that the person claiming the benefit of this doctrine must show that “the parties would have married before the child’s birth or conception but did not because unconstitutional laws prevented them from doing so.” The court found persuasive precedent for applying this test in In re Madrone, 271 Or. App. 116, 350 P.3d 495 (Oregon Court of Appeals, 2015), emphasizing that the burden to show that the parties would have married would take care of the problem of unmarried heterosexual couples who were legally capable of married but chose not to do so. Based on Pueblo’s factual allegations, it appears that on remand she will likely be able to meet the test based on the Madrone criteria, but it is up to the trial court to determine the facts, which were not previously determined in this case because the summary judgment was based solely on lack of standing. However, wrote Justice Kavanagh, “Pueblo has alleged facts entitling her to a threshold determination on whether the parties would have married but for Michigan’s unconstitutional bar on same-sex marriage under the inquiry set forth above.”

Justice Kavanaugh also commented, in conclusion, that if Pueblo meets the burden of showing she is entitled to the benefit of the equitable-parent doctrine, “she has the right to a best-interest evaluation for custody and parenting time.” The court of appeals decision is reversed and the case remanded to the trial court “for further proceedings consistent with this opinion.”

Concurring, Justice Kyra H. Bolden observed that the extension of the doctrine raised a host of questions and urged the legislature to revise the state’s custody laws to provide answers.

Justice Brian Zahra dissented in an opinion joined by Justice David F. Viviano. He argued that the plaintiff’s brief had failed adequately to address the constitutional issues raised by her claims. “While I am sympathetic toward plaintiff’s circumstances,” he wrote, “extending the equitable-parent doctrine, a marriage-based doctrine that rests on shaky legal grounds, is inappropriate and ill-suited to provide plaintiff the relief she seeks. The majority’s extension of the doctrine, and its creation of an accompanying ‘but for’ test, is unsupported by the law and likely will result in far-reaching ramifications outside the child custody context. Because I would not extend the equitable-parent doctrine and because I believe that the legislature, not the judiciary, should be making these policy-based decisions, I dissent. I would decline to disturb the opinions of the lower courts in this case.”

Carrie Pueblo’s counsel is Reh A. Starks of Kalamazoo.

Legal Issues | Tagged Carrie Pueblo v. Rachel Haas, Child Custody and Visitation for Same-Sex Partners, constellation of marriage rights, constitutional right to marry, de facto parents, Equitable-Parent Doctrine, Justice Brian K. Zahra, Justice David F. Viviano, Justice Kyra H. Bolden, Justice Megan K. Cavanagh, Michigan Supreme Court, Obergefell v. Hodges, Pueblo v. Haas, Reh A. Starks | Comment

6th Circuit Panel Stays Preliminary Injunction in Tennessee Gender-Affirming Care Case

July 8, 2023

For the first time, federal judges have suggested that constitutional challenges to state laws banning gender-affirming care for minors are unlikely to succeed, and have stayed a preliminary injunction that was issued by the district court on June 28 against operation of Tennessee’s law. The case is LW. V. Skrmetti, No. 23-5600 (6^th Cir.). The state’s request to the trial judge to stay his preliminary injunction pending an appeal had been denied by that judge. The state immediately filed an “emergency motion” to stay the preliminary injunction.

A three-judge panel of the U.S. Court of Appeals for the 6^th Circuit voted 2-1 in a decision released on July 8 that the district court’s statewide preliminary injunction against the Tennessee law should be stayed as the case proceeds. However, acknowledging that their ruling contradicts the ruling of all federal courts that have addressed this issue thus far on the issues of due process and equal protection, the panel promised to expedite consideration of the state’s appeal from the preliminary injunction, with the goal of issuing a decision by September 30.

The Tennessee law, which was scheduled to go into effect on July 1, authorizes state regulatory authorities to impose “professional discipline” on any physician providing gender-affirming care to minors, with a temporary carve-out until March 31, 2024, for continuing care to those already receiving the treatment. Thus, it would be professional misconduct in Tennessee for a licensed health care provider to start providing gender-affirming care to patients now, or to continue providing such care to patients after March 31 of next year. The law also provides a right for an “injured minor” or a “nonconsenting parent” to sue health care providers for providing such care.

The district judge who issued the preliminary injunction, Eli Richardson (appointed by President Donald J. Trump), found that the plaintiffs – three transgender minors and their parents– were likely to prevail on their argument that the law violated the constitutional rights of transgender minors on equal protection grounds and their parents on due process grounds. However, he found that they lacked standing to contest the ban on surgery, limiting his preliminary injunction to the ban on puberty blockers or cross-sex hormones.

The majority of the 6^th Circuit panel, Chief Circuit Judge Jeffrey Sutton (appointed by President George W. Bush) and Circuit Judge Amul Thapar (appointed by President Trump), found that Judge Richardson erred by recognizing a “new” fundamental right under the due process clause for parents to override state legislative judgments about access to particular medical treatments for their children. Judge Richardson found, based on the record before him, that the facts asserted by the Tennessee legislature in support of this measure were contrary to the weight of professional medical authority, but the panel majority insisted that on a motion for preliminary injunction it was inappropriate for the trial court to substitute its judgment for the legislature’s decision to “protect” minors from “experimental treatments” that could permanently affect their reproductive capacity. The panel majority was critical of the judge’s deferral to the majority judgment of the medical profession, noting that there was debate within the profession on the wisdom of using these medications on minors.

The panel majority also seized upon the fact that use of puberty blockers and cross-sex hormones for gender affirming care was an “off label” use of those medications, as they have not been officially approved by the Food and Drug Administration (FDA) for that purpose. Judge Richardson had found that “off-label” use of approved drugs is a widespread practice in the medical profession when the drugs have been deemed safe by the FDA, so he had not given weight to the state’s argument that it was rational for it to prohibit such care on that basis.

The panel majority insisted that the Supreme Court has never directly recognized the fundamental right claimed by the plaintiffs in this case, and had – most recently in the Dobbs abortion decision – shown great reluctance to apply the Due Process Clause to recognize rights that were not recognized when the 14^th Amendment was adopted in 1867. Indeed, the court pointed out that the Supreme Court has not recognized any new fundamental rights in the past forty years, arguing that thus it was inappropriate for a federal trial judge to do so in deciding a pre-trial preliminary injunction motion. As far as the panel majority was concerned, the Supreme Court’s prior parental rights decisions (dealing with education and child custody issues) had not extended to health care, and the Supreme Court had even overridden parents objections to a compulsory vaccination law more than a century ago.

The panel majority rejected Judge Richardson’s conclusion that the plaintiffs were likely to prevail on their equal protection claim, which was based on the conclusion that banning gender-affirming care should be considered either discrimination on the basis of sex or of gender identity, in either case subject to heightened scrutiny. The panel majority argued that neither the Supreme Court nor the 6^th Circuit has explicitly ruled that gender identity discrimination requires heightened scrutiny.

They also rejected the argument that banning gender-affirming care constitutes sex discrimination. In so doing, they rejected the argument that the Supreme Court’s reasoning in the Bostock case, holding that an employer discriminating against an employee because of their “transgender status” constituted sex discrimination, should be applied in a constitutional equal protection case. They argued that the Bostock decision applied to interpretation of Title VII of the Civil Rights Act of 1964, which applies only to employment discrimination, and that the Supreme Court had disclaimed ruling on any other aspect of gender identity discrimination.

The panel majority instead embraced the simplistic argument that because the ban on gender affirming care applied equally to male and female minors, there was no discrimination because of sex. Such reasoning had been rejected by the Supreme Court in Loving v. Virginia, where the state defended its law against interracial marriage by arguing that both white and non-white persons were prohibited from engaging in interracial marriage so there was no discrimination because of race. The panel majority countered with the Supreme Court’s holding in Dobbs that laws banning abortion, an operation performed only on women, did not raise an equal protection issue.

Before getting to these substantive points, however, the full three-judge panel found that Judge Richardson should not have issued a statewide injunction, insisting that any preliminary relief should be limited to the plaintiffs in the case. They noted that this was not certified as a class action case, and that blocking the enforcement of a statute for the entire state could only be justified if plaintiffs were likely to prevail on a claim that there were no possible lawful applications of the statute, that it was invalid on its face for all applications.

Dissenting in part, Senior Circuit Judge Helene White (initially appointed by President Bill Clinton toward the end of his second term, but confirmed under a deal to break a deadlock in confirming circuit court judges under which her name was resubmitted to the Senate by President George W. Bush) agreed that the statewide injunction was improper under a 6^th Circuit precedent holding that “district courts should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” However, she parted company from the majority on the equal protection claim, finding that the 6^th Circuit’s precedents had recognized discrimination claims by transgender plaintiffs in several cases under Title VII, and that the 6^th Circuit had specifically held in the past that “we review discrimination claims brought under the Equal Protection Clause using the same test applied under Title VII.” She would have upheld the preliminary injunction but narrowed it to apply only to enforcement against the plaintiffs.

Legal Issues | Tagged Circuit Judge Amul Thapar', Circuit Judge Helene White, Circuit Judge Jeffrey Sutton, cross-sex hormones, District Judge Eli Richardson, Due Process, due process fundamental rights, equal protection, gender identity discrimination, gender-affirming care, health care professionals, LW v. Skrmetti, parental rights, preliminary injunction, professional misconduct, puberty blockers, sex discrimination, state-wide injunction, substantive due process, Tennessee ban on gender-affirming care, transgender minors, US court of Appeals 6th Circuit | Comment

Trump-Appointed Judge Blocks Enforcement of Indiana Law Against Gender-Affirming Care for Minors

June 18, 2023

Earlier this year Indiana Governor Eric Holcomb signed into law Senate Enrolled Act 480 (SEA 480), which, effective July 1, 2023, would prohibit health care practitioners from proving gender-affirming procedures to minors, and from “aiding or abetting” another health care provider in providing such care to minors.

The procedures covered by the law are puberty blockers, cross-sex hormones, and surgical alteration, and “aiding and abetting” would include assisting in treatment or making referrals. These procedures are not subject to the legal prohibition unless they are performed for the purpose of gender transition.

If the law went into effect, doctors would risk loss of their licenses if they provided gender-affirming care or helped minors to find health care providers in other states who would provide such care. The statute authorizes any individual to sue, although the normal means of enforcement would be proceedings by the medical licensing board.

Four transgender minors, their parents, and a doctor who provides gender-affirming care to minors, Catherine Bast, filed a federal lawsuit against the members of the Medical Licensing Board of Indiana, which is authorized to enforce SEA 480, as well as the Attorney General of Indiana and the state official in charge of the state’s Medicaid program. The plaintiffs seek to certify a class action on behalf of themselves and similarly situated individuals to have SEA 480 declared unconstitutional and to get an injunction against its enforcement. On filing suit, they sought a preliminary injunction to prevent the law from going into effect on July 1 while the case proceeds to a final judgment.

The plaintiffs and the defendants agreed that gender-affirming surgery is not practiced on minors in Indiana, so the court found that the plaintiffs did not have standing to attack that part of the statutory ban.

However, U.S. District Judge James Patrick Hanlon, who was appointed by President Trump in 2018, found that the plaintiffs have shown “some likelihood of success” on their equal protection and free speech claims. He issued a preliminary injunction on June 16 that will block any enforcement of the law (except as to surgery) until the court issues a final ruling on the merits of the case. See K.C. v. Individual Members of the Medical Licensing Board of Indiana, 2023 U.S. Dist. LEXIS 104870 (S.D. Ind., June 16, 2023). Hanlon’s ruling was consistent with similar awards of preliminary relief against laws banning gender-affirming care for minors in Alabama and Arkansas.

Shortly after the lawsuit was filed by the American Civil Liberties Union (ACLU), the defendants filed a motion to “stay briefing” on the plaintiffs’ motion for class certification until after Judge Hanlon ruled on the motion for preliminary injunction. Clearly, they anticipated that a preliminary injunction would be issued and they wanted to delay class certification so they could argue that such an injunction should be limited to the four plaintiffs and not apply to any other transgender minors or health care providers other than Dr. Bast.

On May 5, Judge Hanlon issued an order in response to the defendants’ motion to delay briefing on. See 2023 WL 3872436. He pointed out that 7^th Circuit precedent allows him to issue class-wide preliminary relief as a matter of the court’s equitable powers when the facial unconstitutionality of a statute is at issue, even if a class action has not been formally certified. His June 16 Order blocks enforcement of SEA 480 as to puberty blockers and hormones and the aiding and abetting provision against any person, not just the named plaintiffs.

The court’s decision to award preliminary relief to the plaintiffs was not a ruling on the ultimate merits of their claim that the law is unconstitutional, but winning this relief is an important step, because if the statute goes into effect, minors seeking gender-affirming care would have to go out of state to get it, and those already receiving puberty blockers or cross-sex hormones would have to be weaned off their medication by the end of 2023. Their doctors would be placing their licenses to practice at risk by assisting them.

Judge Hanlon accepted the plaintiffs’ argument that SEA 480 discriminates against transgender minors on the basis of their sex, thus subjecting the law to heightened scrutiny. This means there is a presumption of unconstitutionality, the burden is on the state to show that the challenged law “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

The defendants argued that the purpose of the law was to protect minors from being subject to “experimental” procedures that could cause irreparable harm to them. They contended that “the prohibited treatments are unsafe and their effectiveness is unproven.” The plaintiffs countered that “there’s no important government interest to justify prohibiting ‘safe, effective, and medically necessary treatment for the health and well-being of adolescents suffering from gender dysphoria.”

“Certainly,” wrote Judge Hanlon, “the proffered state interests are legitimate.” However, he continued, “But heightened scrutiny requires a ‘close means-end fit,’ so it’s not enough for the State’s interest to justify some regulation of gender transition procedures for minors. Instead, the State’s interests must justify SEA 480’s prohibition of gender transition procedures for minors. SEA 480’s scope is broad.” Indiana had decided to ban the procedures outright, however, not just to regulate them.

While acknowledging the defendant’s evidence of various risks attendant on these procedures, wrote Judge Hanlon, “Nevertheless, Plaintiffs argue that these ‘concerns are based on mischaracterizations and distortions about the diagnosis and treatment of gender dysphoria. Maybe Plaintiff will be able to prove that’s true at a trial where Defendants’ experts are subject to cross-examination on the strength of their opinions,” he continued. “But based on the paper record available here, the Court find that Defendants have designated some evidence in support of their position. Even so, heightened scrutiny requires more – the regulation must have an ‘exceedingly persuasive justification,’ and a ‘close means-end fit.’ In other words, the State’s specific means (SEA 480’s broad ban) must fit its ‘ends’ (protecting minors and regulating the medical profession).”

In this case, the Plaintiffs have presented evidence of the harms to transgender minors if they don’t get gender-affirming care, which are assertedly substantial: “prolonging of their dysphoria, and causing additional distress and health risks, such as depression, posttraumatic stress disorder, and suicidality.”

“So,” concluded Judge Hanlon, “while the State has identified legitimate reasons for regulation in this area, the designated evidence does not demonstrate, at least at this stage, that the extent of its regulation was closely tailored to uphold those interests. Plaintiffs have shown some likelihood of success on the merits of their equal protection claim.” And that’s all they need to get preliminary relief, provided the balance of harms and benefits tilts in their favor, which the court found that they did in this case.

The defendants tried to play the trump card of pointing out restrictions on gender-affirming care that have been adopted in several European countries, but that evidence did not persuade the court that Indiana was justified in passing a total ban, since none of the European countries have done so. Rather, they have tightened criteria for providing such care and in some cases restricted it to being provided “in the context of a formal research protocol,” as the English National Health Service has proposed. “Most detrimental to Defendants’ position is that no European country that has conducted a systematic review responded with a ban on the use of puberty blockers and cross-sex hormones as SEA 480 would,” Hanlon observed.

He also found that Dr. Bast’s First Amendment claim was also likely to prevail. The “aiding and abetting” provision is a direct restriction on the speech of health care practitioners, and its justification depends on what the court finally concludes on the minors’ probably valid equal protection claims. Restrictions on speech protected by the First Amendment are subjected to a higher level of scrutiny than sex discrimination claims, placing an even higher burden of justification on the state.

Judge Hanlon’s June 16 ruling should not be a total surprise, since the 7^th Circuit Court of Appeals has ruled as early as 2017 in the case of Whitaker v. Kenosha Unified School District, 858 F.3d 1034, that a restroom policy that discriminates against transgender students violates the sex discrimination ban in Title IX of the Education Amendments Act, thus establishing a precedent for the 7^th Circuit (which includes Indiana) that such discrimination should be analyzed as sex discrimination under the heightened scrutiny standard.

As for the First Amendment claim, Judge Hanlon had ruled in 2021 on the First Amendment rights of doctors in the context of an Indiana law that required doctors to inform pregnant women who had begun the abortion process using the pill sequence that there was a way to stop the process after the first pill by taking medication that could “reverse” its effect. Hanlon enjoined the state from mandating doctors to provide such information, which he found to be of dubious validity, to their patients.

Because he found the equal protection claims by the minor plaintiffs and the free speech claim by Dr. Bast sufficient to justify a preliminary injunction, Judge Hanlon did not address the plaintiffs’ argument that SEA 480 violates the parents’ due process rights, or issues raised under the Medicaid law and the Affordable Care Act. They will be addressed later in the case when the court issues a final ruling on the merits, unless, of course, the court concludes that it should strike down the statute on equal protection grounds, in which case these other issues would not have to be addressed.

Before the court ruled on the plaintiffs’ motion for preliminary injunction, US Magistrate Judge Kellie M. Barr, assigned to assist Judge Hanlon on the case, issued an order on June 13 that certain documents filed in the case be maintained “under seal” to protect the privacy of the minor plaintiffs, who are identified throughout Judge Hanlon’s decision by their initials rather than their names, as is customary on most litigation involving minors. See 2023 WL 3978425.

Judge Hanlon also granted a motion by sixteen states, led by Arkansas and Alabama, to file an amicus brief in support of Indiana’s law. By no coincidence, they are states that have passed similar laws, and Arkansas and Alabama have been preliminarily enjoined from enforcing theirs.

Legal Issues | Tagged ACLU, ACLU transgender rghts, cross-sex hormones, gender dysphoria, Gender Transition, gender-affirming care for minors, Indiana ban on gender-affirming care for minors, Indiana SEA 480, K.C. v. Individual Members of the Medical Licensing Board of Indiana, LGBTQ rights in Indiana, puberty blockers, Sex Change, transgender law, US District Judge James Patrick Hanlon, WPATH Guidelines | Comment

Federal Judge Slams Tennessee Anti-Drag-Show Law

June 5, 2023

U.S. District Judge Thomas L. Parker, who was appointed to the Western District of Tennessee bench by President Donald J. Trump, issued a ruling on June 2 holding that Tennessee’s recently adopted “Adult Entertainment Act” (AEA), which was intended to restrict drag shows, violates the First Amendment. Judge Parker previously issued a temporary restraining order (TRO) in March to stop the law from going into effect before he could rule on the merits of the plaintiff’s constitutional claim. His June 2 ruling came after a two-day hearing on May 22-23.

The opinion is cited as Friends of Georges, Inc. v. Mulroy, 2023 WL 3790583, 2023 U.S. Dist. LEXIS 96766 (W.D. Tenn., June 2, 2023).

Governor Bill Lee signed the AEA into law on March 2. It was supposed to take effect on April 1. Friends of Georges, Inc., a non-profit group that presents drag shows to raise money for charitable causes, was scheduled to present a show in mid-April, and was concerned that it risked criminal prosecution, so it moved quickly to seek a TRO. The original TRO was supposed to last just for a few days, but Judge Parker extended it and converted what would normally be a hearing on a preliminary injunction into a hearing on the merits. As part of June 2’s ruling, he denied Shelby County District Attorney General Steven J. Mulroy’s motion to dismiss the case as “moot.”

The lawsuit was originally aimed at Governor Lee and the state attorney general as well as Mulroy, but the court determined that Mulroy was the appropriate defendant because the law was to be enforced by local prosecutors. Much of the court’s opinion is devoted to refuting Mulroy’s arguments that the plaintiffs lacked standing to bring a pre-enforcement challenge.

The statute, surprisingly, never explicitly mentions drag shows. Instead, it adds language to an existing Tennessee law regulating venues for adult entertainment by creating a new category – “adult cabaret entertainment” – which it defines as “adult-oriented performances that are harmful to minors, as that term is defined in Section 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”

The statute makes it a crime for “a person to perform adult cabaret entertainment on public property; or in a location where the adult cabaret entertainment could be viewed by a person who is not an adult.” Unlike prior statutes that focused regulatory enforcement on the business that is providing the show, this statute focuses on the performers, threatening them personally with criminal liability that may result in fines or imprisonment. A first offence is a misdemeanor. A repeat offense is a felony likely to result in prison time.

The definition of “harmful to minors” means “that quality of any description or representation, whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and taken as a whole lacks serious literary, artistic, political or scientific values for minors.” This wording was taken from the U.S. Supreme Court’s 1974 Miller v. California opinion, which set out a uniform definition of obscenity for purposes of the First Amendment. Even though the First Amendment says that “Congress shall make no law abridging the freedom of speech,” the Supreme Court has long held that “obscene speech” is not protected from state prohibition by the First Amendment. (A few stubborn textualists of an earlier generation on the Court rejected that exception, saying that “no law means no law.”)

Under Supreme Court precedents, if a state law can be classified as a content-based regulation of speech, it is subjected to “strict scrutiny” by the court, which means that the law is presumed to be unconstitutional unless the state proves that the law is necessary to achieve a compelling state interest, and that it is “narrowly tailored” to avoid unnecessarily restricting protected speech.

Judge Parker’s key ruling was that the AEA is a content-based regulation of speech subject to strict scrutiny. “The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under section 39-17-901’ does target protected speech, despite Defendant claims to the contrary,” he wrote. “Whether some of us like it or not, the Supreme Court has interpreted the First Amendment as protecting speech that is indecent but not obscene. Because the AEA’s text targets such speech, the Court finds it is a content-based regulation. The AEA draws distinctions based on the message a speaker conveys: adult-oriented performances that are harmful to minors are sanctioned with a criminal penalty while others are not. This fact alone does not make the AEA unconstitutional – but it does make it a content-based regulation that may be possibly subject to strict scrutiny review.”

Strict scrutiny definitely kicks in when a content-based regulation is not viewpoint neutral. The court found that this law is not viewpoint neutral because it targets the individual performers for enforcement. He observed that “the AEA’s text criminalizes performances that are ‘harmful to minors’ by ‘male or female impersonators,’ and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity – particularly, those who wish to impersonate a gender that is different from the one with which they are born.”

Furthermore, Judge Parker found that the AEA was enacted for an “impermissible purpose.” Focusing on male or female impersonators “is evidence that the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.” Also, the law lacks a “textual scienter requirement” – that is, a requirement that the performer has “knowingly” violated the statute by presenting a performance that is harmful to minors, and it does not provide for any affirmative defenses, such as parental consent for their children to see the performance.

Here, the problem of vagueness entered in as well, because the language of the statute did not restrict its enforcement to adult entertainment venues, but extended to any place where minors could be present, which could be, said the court, “virtually anywhere,” echoing the words of an opponent of the bill during the legislative debate.

“For these reasons,” wrote Parker, “the AEA can criminalize – or at a minimum chill – the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County. Such speech is protected by the First Amendment.” The court quoted excerpts from the legislative history bolstering these conclusions.

While acknowledging that the state always has a compelling interest in protecting children, the court found that this statute was not “narrowly tailored” to achieve that interest, but rather, due to the vague contours of the statutory prohibition, lent itself to overly broad and subjective enforcement. The law induces a “chilling” effect because it is hard for performers to find a bright line demarcating when their performance would be violating the statute. This was certainly the case with Friend of Georges, which was unsure how to proceed with their drag show scheduled to be presented just two weeks after the statute was to go into effect.

Judge Parker viewed video recordings of past drag performances presented by Friends of Georges and saw the ambiguities that would make it unpredictable how law enforcement officers might apply the statutory language to particular performances. The court found that there was a danger of “substantial overbreadth” in applying the vague statutory language, which would deter the plaintiffs from engaging in constitutional protected speech out of a reasonable fear of prosecution.

“The Tennessee General Assembly can certainly use its mandate to pass laws that their communities demand,” wrote Parker, alluding to “scores of concerned Tennesseans” who had “asked the Court to uphold the AEA because their State supposedly enacted it to protect their children…. But that mandate as to speech is limited by the First Amendment to the United States Constitution, which commands that laws infringing on the Freedom of Speech must be narrow and well-defined. The AEA is neither.”

In addition to declaring the law unconstitutional, the court issued an injunction against Attorney General Mulroy’s office enforcing it.

Judge Parker’s decision can be appeal by defendant Mulroy to the U.S. Court of Appeals for the 6^th Circuit.

Legal Issues | Tagged Compelling State Interest, drag shows, Drag Shows as art, Draw shows as speech, First Amendment, freedom of speech, Friends of Georges, harmful to children, Inc. v. Mulroy, male or female impersonators, Miller v. California, Narrowly tailored, Shelby County District Attorney General Steven J. Mulroy, strict scrutiny, Tennessee Adult Entertainment Act, Tennessee anti-drag show law, Tennessee Governor Bill Lee, U.S. District Court Western District of Tennessee, U.S. District Judge Thomas L. Parker | Comment

Federal Appeals Court Upholds Constructive Discharge of Teacher Who Mis-Gendered Trans Students

April 11, 2023

A three judge panel of the Chicago-based U.S. Court of Appeals for the 7^th Circuit ruled on April 7 that the Brownsburg (Indiana) Community School Corporation did not violate Title VII of the Civil Rights Act of 1964 when it told a music teacher at the district’s high school that if he refused to comply with the district’s policy regarding names and pronouns for transgender students he should quit or would be fired. Kluge v. Brownsburg Community School Corp., 2023 WL 2821871, 2023 U.S. App. LEXIS 8328 (7th Cir., April 7, 2023).

The teacher, John M. Kluge, protested the policy on religious grounds when it was first announced. He and three other teachers approached the high school’s principal, Dr. Bret Daghe, presenting a seven-page letter expressing their religious objections to “transgenderism,” arguing that the school “should not treat gender dysphoria as a protected status, and urged the school not to require teachers to refer to transgender students by the names or pronouns that the teachers deemed inconsistent with the students’ sex recorded at birth,” wrote Circuit Judge Ilana Rovner in her opinion for the majority of the panel.

The school maintained an official student database, called “Power-School,” which included names and gender markers, preferred pronouns and other data. Kluge claims that Dr. Daghe told the teachers that he had resisted pressure to change the students’ names in Power-School, but that he “would make this change if it would resolve the teachers’ concerns regarding how to address transgender students,” Kluge later testified. The other three teachers who had signed Kluge’s letter agreed to use the names and pronouns as shown in the Power-School database, but Kluge hanged tough, insisting that he had a right to assert his religious views and refuse to comply. Somehow, Kluge walked away from the meeting thinking that he had Dr. Daghe’s permission to continue using students’ “legal names” and that “we would not be promoting transgenderism in our school.”

He was mistaken, according to Dr. Daghe, as the district leadership decided to require teachers to use the PowerSchool names and pronouns. Transgender students could change their names and pronouns in PowerSchool by presenting two letters, one from a parent and one from a healthcare professional, regarding the need for changes. Assistant Superintendent Dr. Kathryn Jessup explained in testimony that this fulfilled two goals: it established a clear rule for faculty members to follow, and “it afforded dignity and showed empathy toward transgender students who were considering or in the process of gender transition.” The leadership considered it “important for transgender students to receive, like any other student, respect and affirmation of their preferred identity, provided they go through the required and reasonable channels of receiving and providing proof of parental permission and a healthcare professional’s approval.”

This policy was communicated to teachers by a guidance counselor using emails at the beginning of the 2017-18 school year, and Kluge was notified that that he would have two transgender students in his music classes. He expressed shock, and interpreted the emails as being “permissive, not mandatory,” determined to use only “legal names” for his students. He met with Dr. Daghe, once again raising his religious objections. After consulting the Superintendent of Schools, Daghe told Kluge that he had three options: comply with the policy, resign, or be suspended pending termination. When he refused either to comply or resign, he was suspended and sent home. When he came back to the school a few days later to meet with administrators, he was presented with a written directive requiring him to state either that he would or would not comply with the school’s rule.

Kluge responded by proposing an “accommodation” to his religious beliefs. He wanted to be allowed to address all students by their last names and not use pronouns, and to have somebody else hand out the gender-specific uniforms for students in the orchestra. This was agreed to, but in the long run, it didn’t work out because it became obvious to the students what was going on. The transgender students felt demeaned and many of their classmates were upset as well. Other teachers expressed concern. Kluge slipped up at times and was inconsistent in his naming and pronoun practices. The faculty advisor to the school’s “Equality Alliance Club” reported to Dr. Daghe that complaints about Kluge were frequently voiced at club meetings. Parents of transgender students complained to the school in writing as well. Non-transgender students reported that the way Kluge was acting was making them uncomfortable. One transgender student was so upset that he ended up withdrawing from the orchestra program entirely.

This summary of what happened drastically truncates the lengthy and detailed narrative provided by Judge Rovner in her opinion, a factual record that led a majority of the appellate panel to conclude that the school had a legitimate basis to go back to Kluge at the end of the school year and inform him that the “accommodation” was not working, and that he would have to resign or he would be fired. He resigned under protest and filed this lawsuit

Represented by lawyers from Alliance Defending Freedom (ADF), the conservative religious law firm, Kluge sued the Brownsburg school corporation in the Indiana federal district court, claiming violations of the Constitution and invoking the statutory ban on religious discrimination under Title VII. District Judge Jane Magnus-Stinson dismissed Kluge’s constitutional claims and various other state law claims, and ruled against Kluge’s claim that his forced resignation violated his rights under Title VII, either as outright discrimination or as retaliation for his protest against the school’s policy.

Kluge appealed only his Title VII discrimination and retaliation claims, so the 7^th Circuit decision does not address the constitutional claims. Title VII makes it illegal for an employer to discriminate against an employee because of his religion, and requires employers to “reasonably accommodate” an employee’s religious beliefs and practices. The duty of reasonable accommodation is limited by Supreme Court precedents, however. An accommodation that would impose an “undue hardship” on the employer’s business cannot be required. The statute also prohibits an employer from retaliating against an employee for engaging in activity protected under the statute.

The district court concluded that Kluge established a prima facie case of failure to accommodate his religious belief, but that the school had proven that Kluge’s naming/pronoun accommodation imposed an “undue hardship” on the school’s “business,” and the majority of the 7^th Circuit panel agreed.

“As a public school,” wrote Judge Rovner, “Brownsburg’s ‘business’ is its constitutional and statutory charge to educate all students who enter its doors.” The court described students as a “captive audience” because education is “compulsory.” Students must attend public school unless their parents are willing to pay for private schools or make the time commitment for home schooling. The court quoted from an earlier decision “noted in the First Amendment context”: “Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives.” It should be up to the politically accountable school boards (or in the case of this school district, the elected trustees of the education corporation), not the teachers, to determine issues about what goes on in the classrooms. “At least the board’s views can be debated openly,” the court had written, “and the people may choose to elect persons committed to neutrality on contentious issues. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”

Here, the school claimed that Kluge’s naming practices, including the so-called last name accommodation, had imposed two undue hardships on the school: first, it “frustrated” the school’s efforts to “educate all students” because it “negatively impacted students and the learning environment for transgender students and other students as well”; and second, it exposed the school district to potential loss of federal funding and damages if transgender students filed discrimination claims with the federal government under Title IX, a law that prohibits discrimination because of sex against students at schools that receive federal funds. At the time of this lawsuit, the 7^th Circuit had recently ruled in a lawsuit by a transgender boy excluded from the boys’ restrooms in another Indiana school district, holding that this violated Title IX. Thus, 7^th Circuit precedent supported the school’s concern about potential liability if it allowed Kluge to continue his contested practices.

Judge Rovner declared, “A practice that indisputedly caused emotional harm to students and disruptions to the learning environment is an undue hardship to a school as a matter of law.” The court also found that there was no other accommodation available in this case, because Kluge was the school’s only music teacher, so students could not be transferred to another classroom to be able to participate in the music program without having to deal with Kluge (and, the court commented, “if we assume that transfer to another classroom would not be equally stigmatizing”).

As to Kluge’s retaliation claim, the court found that he “failed to produce evidence that established a but-for causal link between protected activity and the adverse action, and so failed to make out a prima facie case of retaliation.” The court found Kluge’s briefing on this point insufficient, failing to cite relevant evidence for his claim, for example, that he was subjected to a “hostile environment” because of his religious beliefs after he protested the naming policy during the summer of 2017. And, of course, the school’s “undue hardship” defense would counter any liability for retaliation, because the court found that the school was justified in revoking the “accommodation” agreement, having correctly concluded that it was not working.

Judge Michael Brennan agreed with the majority of the panel on the retaliation claim, but he dissented from the ruling on direct Title VII liability, arguing that the religious accommodation claim “comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all student by only their last name causes undue hardship – that is, more than a de minimis cost? The majority opinion says ‘yes,’ but it sidesteps Kluge’s countervailing evidence, failed to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder.” Brennan argued that there should have been a trial to determine whether Kluge’s “accommodation” had actually posed an undue hardship. Judge Rovner’s opinion sharply disputed this, finding the record overwhelming supported the school’s decision to end the “accommodation agreement.”

This panel opinion may not be the last word on Kluge’s discrimination claim. ADF has a practice of appealing any adverse ruling as far as they can take it, since it is a policy-driven organization that is dedicated to establishing maximum religious freedom through the courts.

This three-judge panel was made up entirely of judges appointed by Republican presidents. Judge Rovner was appointed by President George H.W. Bush in 1992, while both Judge Brennan and the other judge on the panel, Amy St. Eve, were appointed by President Trump. ADF may seek reconsideration by the full ten-judge 7^th Circuit bench, which tips 7-3 in Republican appointees. (There is one vacancy in this Circuit, and President Biden has not announced a nomination for the vacant seat.)

ADF might alternatively directly seek Supreme Court review. This term the Court is reconsidering the issue of religious accommodation in another case. If ADF were to file a petition with the Court, is likely that the Court would delay deciding whether to grant the petition until it releases an opinion in the other case and if, as widely expected, the Court’s decision strengthens the accommodation requirement, to then send this case back to the lower courts for reconsideration in light of the new standard.

Legal Issues | Tagged 7th Circuit, Circuit Judge Ilana Rovner, Circuit Judge Michael Brennan, District Judge Jane Magnus-Stinson, Kluge v. Brownsburg Community School Corp., mis-gendering, religious accommodation, religious discrimination, statutory right to mis-gender students, Title VII of Civil Rights Act of 1964, transgender students, undue hardship to employer's business, US Court of Appeals | Comment

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

March 13, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 25, 2023

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

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

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

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

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

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

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

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

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

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