New York Law School

Art Leonard Observations

Federal Appeals Court Says University Professor May Have 1st Amendment Right to Misgender Transgender Students

Nicholas Meriwether, a philosophy professor at Shawnee State University in Portsmouth, Ohio, was very concerned in 2016 when the University announced that its ban on gender identity discrimination would require professors to respect students’ gender identity by using appropriate pronouns to refer to them.  Meriwether, a devout Christian who rejects the idea that people can have a different gender identity than their genetic sex, protested to his department chair, who ridiculed his religious beliefs and told him to comply with the rule.  Now a federal appeals court panel has ruled that the Meriwether could have a 1st Amendment right to insist on misgendering transgender students based on his religious beliefs.  Meriwether v. Hartop, 2021 WL 1149377, 2021 U.S. App. LEXIS 8876 (6th Cir., March 26, 2021).

According to his federal court complaint, Meriwether says that the department chair exhibited hostility toward him and his beliefs during their meeting, stating that “adherents to the Christian religion are primarily motivated out of fear”; “the Christian doctrines regarding hell are harmful and should not be taught”; “anyone who believes hell exists should not be allowed to teach these doctrines”; “faculty members who adhere to a certain religion should be banned from teaching courses regarding that religion”; and “the presence of religion in higher education is counterproductive” because “the purpose of higher education is to liberate students” and “religion oppresses students.”

Meriwether, who had taught at Shawnee for 35 years, confronted the issue up-close in January 2018 when he returned from a semester on sabbatical leave and discovered, undoubtedly to his chagrin, that there was a transgender woman in his class, who is identified in the litigation as “Doe.”  Meriwether, believing Doe to be male, addressed Doe as “sir” in response to a comment Doe made in class discussion.  After the class, Doe approached Meriwether and advised him that Doe was a woman and should be addressed accordingly.  Doe threatened to file a complaint against Meriwether if he did not address her as female.

This led ultimately to the University putting a disciplinary note and warning in Meriwether’s file when he failed to abide by instructions to consistently address Doe as a woman or to just to use her last name when calling on or referring to her.  He tried to restrain himself from addressing Doe incorrectly, but slipped up on occasion, quickly correcting himself.  He told one administrator that he would be willing to comply with the rule by referring to Doe consistently as female if he could put an explanatory statement in his course Syllabus setting forth his religious views, but he was told that would itself violate the anti-discrimination rule.

Doe filed at least two complaints with University administrators against Meriwether, leading to findings that he had created a hostile environment for Doe, which he tried to refute by claiming that Doe had participated actively and well in class discussion and earned a high grade in his course.  Meriwether appealed these rulings and claimed that when his union representative tried to explain Meriwether’s religious freedom argument to the University President, that official just laughed and refused to listen.

U.S. District Judge Susan J. Dlott referred the University’s motion to dismiss Meriwether’s 1st Amendment lawsuit to a Magistrate Judge, Karen L. Litkovitz, who issued a Report and Recommendation in 2019 concluding that the case should be dismissed, because Meriwether’s failure to comply with the University’s rule did not involve constitutionally protected speech.  In January 2020, Judge Dlott issued a brief opinion agreeing with Litkovitz’s recommendation and dismissing the case.  Meriwether, represented by Alliance Defending Freedom, a staunchly anti-LGBT religious litigation group, appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which reversed Judge Dlott’s ruling on March 26, reviving the lawsuit and sending it back to the District Court for trial.

Judge Dlott’s decision adopting Judge Litkovitz’s recommendation to dismiss the case was based heavily on Garcetti v. Ceballos, a 2006 Supreme Court ruling that held, by a vote of 5-4, that when government employees speak or write as part of their job, their speech is “government speech” that is not protected by the 1st Amendment.  As Justice Anthony Kennedy interpreted the Court’s free speech precedents, an individual is protected by the 1st Amendment’s freedom of speech when they are speaking as a citizen on a matter of public concern, but not when they are speaking as a government official.  The case concerned a prosecuting attorney who claimed to have suffered unconstitutional retaliation for an internal memo he wrote and some testimony he gave in a criminal court hearing that met with disapproval from his supervisors.  The Supreme Court held that neither his memo nor his testimony enjoyed 1st Amendment protection because he was speaking as part of his job as a government official.

In a dissent, Justice David Souter raised the specter of censorship of public university professors who are employed to engage in scholarship and teaching and who would theoretically be deprived of academic freedom under such a rule.  Justice Kennedy responded in his opinion by acknowledging the academic freedom concern and observing that the Court was not deciding that issue in the Garcetti case.  Lower federal courts have been divided about the impact of Garcetti in cases involving educators seeking 1st Amendment protection for their speech.

In her opinion, Judge Litkovitz found that Professor Meriwether’s use of inappropriate terminology to refer to Doe was not protected speech, relying in part upon the Garcetti reasoning, and Judge Dlott accepted her conclusion.  But the 6th Circuit panel (which included two judges appointed by President Donald J. Trump) decisively rejected that view.

Writing for the unanimous panel, Circuit Judge Amul Roger Thapar seized upon Justice Souter’s dissent and Justice Kennedy’s acknowledgement that academic freedom concerns could create an exception to the Garcetti rule and insisted that Professor Meriwether’s claim that the University violated his 1st Amendment rights by disciplining him for his use of words in dealing with Doe should not have been dismissed.

“Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors,” wrote Judge Thapar. “Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”  The court insisted that the words Meriwether used reflected his religiously-based beliefs about gender, and as spoken in the classroom were part of his teaching and were thus communicating his point of view about a hotly debated and controversial subject of public concern.  As such, they enjoy 1st Amendment protection under the free speech provision.

Furthermore, pointing out the hostility with which Meriwether’s department chair and the University president had responded to his religiously-based arguments, the court relied on the Supreme Court’s Masterpiece Cakeshop ruling to find that his right to free exercise of religion also came into play in this case.  If speech on an issue of public concern enjoys 1st Amendment protection, then the University’s disciplinary action of placing a warning letter in Meriwether’s personnel file and threatening him with more severe sanctions for future violations would be subject to “strict scrutiny,” which means the University and those officials named as individual defendants would have the burden to show that there is a compelling justification for their actions and that the “accommodations” that Meriwether had suggested would defeat the University’s attempt to achieve its compelling goal.

In this case, the University’s justification lies in Title IX of the Education Amendments of 1972, which provides that schools receiving federal funding may not deprive any individual of equal educational opportunity because of sex.  In 2016, the Obama Administration informed the educational community that it interpreted that language to ban gender identity discrimination, and published a guidance document that instructed, among other things, that transgender students have a right to be treated consistent with their gender identity, including appropriate use of language in speaking to and about them.

The University argued that the 6th Circuit’s decision in the Harris Funeral Homes case, which later became part of the Supreme Court’s 2020 Bostock ruling, had confirmed its compelling interest in preventing discrimination against transgender students.  In that case, the 6th Circuit, and ultimately the Supreme Court, held that the ban on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 applied to an employer’s discharge of a transgender employee when she announced her transition.

Judge Thapar rejected the argument.  “Harris does not resolve this case,” he insisted. “There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee’s transgender status.  The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees’ speech on matters of public concern . . . . [It] would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into ‘enclaves of totalitarianism.’”

Furthermore, he wrote, “a requirement that an employer not fire an employee for expressing a transgender identity is a far cry from what we have here—a requirement that a professor affirmatively change his speech to recognize a person’s transgender identity.”

“At this stage of the litigation,” wrote Thapar, “there is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school’s actions ‘mandate orthodoxy, not anti-discrimination,’ and ignore the fact that ‘[t]olerance is a two-way street.’”  He also rejected the argument that how Meriwether addressed Doe in the classroom deprived her of educational opportunity, pointing out Meriwether’s claim that Doe was an active participant in class discussion and earned a “high grade” in his course.

Thapar supported this view by noting that University President Jeffrey A. Bauer, in confirming the disciplinary decision, had conceded that Meriwether did not create a hostile environment for Doe, instead resting his decision on the assertion that Meriwether discriminated against Doe by addressing cisgender students consistent with their gender identity but not address Doe consistent with her gender identity.  Thus, Judge Thapar concluded, disciplining Doe was not necessary to effectuate Title IX’s policy of protecting educational opportunity.

The court’s opinion lacks any kind of discussion or understanding concerning the concept of “misgendering” and the harm that inflicts on transgender individuals.  In the court’s view, the victim here is Professor Meriwether, not Doe.  This reflects the same cavalier attitude towards misgendering recently displayed in a 5th Circuit decision denying a request by a transgender prisoner that she be referred to consistent with her gender identity in court papers, also treated dismissively by a Trump-appointed appeals court judge.  And it calls to mind a recent ruling by the 11th Circuit striking down on 1st Amendment free speech grounds an attempt by Florida municipalities to protect LGBT youth from the practice of conversion therapy, yet another opinion by a Trump-appointed judge.  The Trump Administration may technically be at an end, but it lives on in his appointment of a third of the active federal appeals court judges.

The only point on which the 6th Circuit panel affirmed Judge Dlott’s ruling was in her conclusion rejecting Meriwether’s argument that the University’s rule was too vague to meet Due Process standards.  The 6th Circuit panel found that Prof. Meriwether was clearly advised of the rule and was accorded Due Process, while finding fault with the lack of neutrality towards religion exhibited by his department chair and President Bauer.  The court ordered that Judge Dlott’s ruling dismissing the lawsuit be vacated, and that the case sent back to the district court for proceedings consistent with the 6th Circuit’s opinion.

 

 

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Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity.  The School Board is appealing from an August 2020 decision by the 4th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems.  The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims.  But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX.  However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students.  Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”  This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review.  Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt.  While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up.  The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU.  Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

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Federal Court Enjoins HHS & EEOC From Requiring Catholic Plaintiffs to Perform or Provide Gender Transition Services

Ruling on the last full day of the Trump Administration, one of the federal trial judges appointed by the outgoing president ruled that the Religious Freedom Restoration Act (RFRA) bars the federal government from enforcing the non-discrimination requirement of the Affordable Care Act (ACA) Section 1557 or Title VII of the Civil Rights Act of 1964 against Catholic plaintiffs to require them either to fund or perform gender transition procedures.  Religious Sisters of Mercy v. Azar, 2021 WL 191009, 2021 U.S. Dist. LEXIS 9156 (D.N.D., January 19, 2021).  Chief Judge Peter D. Welte denied summary judgment to co-plaintiff the State of North Dakota, which sought a declaration that it is not required to provide such procedures in its state health institutions or to its employees or through its Medicaid program, and found that the Plaintiffs lacked standing on their claims concerning performance of abortions and sterilizations, as the court found that various provisions of the ACA and other federal laws already relieved them of obligations in that regard.

Judge Welte issued his opinion just a few days after hearing oral argument on the summary judgment motions, but the case has been pending for a long time and it is likely that he had most of the lengthy, analytical opinion drafted well in advance of the argument, on the basis of the suit papers.

The case was complicated by the history of the federal government’s positions on the issue in question, which changed to the extent of the Trump Administration withdrawing an Obama Administration regulation from  2016 and replacing it with a new regulation, formally announced just days before the Supreme Court’s Bostock v. Clayton County decision.  In Bostock, 140 S. Ct. 1731 (June 15, 2020), the Court determined that Title VII’s ban on discrimination because of sex necessarily extended to claims of discrimination because of sexual orientation and transgender status.

The final regulation announced days before Bostock acknowledged that the case had been argued and indicated that its outcome could affect the scope of the ACA’s non-discrimination requirement.  In its explanatory Prologue to the regulation, HHS reiterated the Trump Administration’s view – presented to the Court in Bostock by the Solicitor General – that discrimination because of sex does not encompass discrimination because of gender identity.  Confident that they were going to win, their new regulation, intended to supplant the Obama Administration’s regulation, removed the earlier regulation’s definition of “sex” so that it no longer specified “gender identity.”  They went ahead and officially published the new regulation as previously schedule in the Federal Register a few days after Bostock was decided, making no effort to delay publication in order to take account of that decision.  The result was peculiar: a regulation formally published just days after a Supreme Court decision that admittedly could affect the substance of the regulation, but utterly failing to grapple with that effect.

The Trump Administration’s brazen decision to go ahead with final publication without taking Bostock into account persuaded several other federal district courts to conclude that the final regulation’s definition of sex violated the Administrative Procedure Act as being inconsistent with the ACA statute’s non-discrimination requirement and/or because it was adopted arbitrarily by failing to consider the Bostock decision.  Other district courts have also criticized HHS’s assertion in the regulation that Title IX’s religious entity exemption was relevant to the ACA, inasmuch as the ACA’s non-discrimination provision specifies that entities covered by it were subject to the kinds of discrimination prohibited by Title IX, which exempts religious schools from its sex discrimination requirements.  The Trump Administration had also persisted in rejecting arguments that Bostock’s interpretation of Title VII necessarily applied to Title IX and other federal sex discrimination laws.

The day after Judge Welte issued his decision, President Biden included among his first Executive Orders one instructing the Executive Branch to apply Bostock to all federal sex discrimination laws.  While EO’s are not interpretively binding on the courts, they are binding on how Executive Branch agencies interpret and enforce their statutory mandates, so the new leadership in HHS and, eventually, the EEOC (where the president gets to appoint one new member of the Commission each year, relatively quickly tipping the balance to the new Administration’s viewpoint regarding the definition of sex discrimination.

But that is neither here nor there regarding the central question in this case, at least as framed by Judge Welte in response to the Catholic plaintiffs, which is whether the government is precluded from enforcing any such non-discrimination requirement against the plaintiffs according to their religiously-based objections, in light of the Religious Freedom Restoration Act.

In Bostock, Justice Neil Gorsuch referred to RFRA as a “super statute” that may override non-discrimination requirements of Title VII (and by extension Title VII and the ACA) in an “appropriate case.”  Is this such an appropriate case?  That turns on whether application of the non-discrimination requirement imposes a substantial burden on the free exercise of religion by the Catholic plaintiffs, in which case Judge Welte characterizes the level of judicial review to be applied to the government’s policy as “strict scrutiny” such that the policy can only be applied if it is the least intrusive way to achieve a compelling government interest.

The court found that “compliance with the challenged laws would violate the Catholic Plaintiffs’ religious beliefs as they sincerely understand them. . .  In meticulous detail, the Catholic Plaintiffs have explained that their religious beliefs regarding human sexuality and procreation prevent them from facilitating gender transitions through either medical services or insurance coverage.”

As to the compelling interest test, the court found that the Defendants “never attempt to make that showing here.”  Of course, Defendants are the Trump Administration’s HHS (for the ACA) and EEOC (for Title VII).  The rule HHS published in June 2020 “conceded to lacking a ‘compelling interest in forcing the provision, or coverage, of these medically controversial [gender-transition] services by covered entities.’”  By contrast, of course, when the Obama Administration opined on this in 2016, HHS specified a compelling interest in ensuring nondiscriminatory access to healthcare, and the EEOC asserted a compelling interest in ensuring non-discriminatory employee benefits plans.  But Judge Welte noted Supreme Court authority that those interests are stated at too high a level of generality to meet the RFRA test, directing courts to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants and to look to the marginal interest in enforcing the challenged government action in that particular context.”  Responding to this command, wrote Welte, “Neither HHS nor the EEOC has articulated how granting specific exemptions for the Catholic Plaintiffs will harm the asserted interests in preventing discrimination. . .  In short, the Court harbors serious doubts that a compelling interest exists.  This issue need not be resolved, however,” he continued, “because the Defendants fail to meet the rigors of the least-restrictive-means test.”

The “least-restrictive means” test is the third part of the RFRA analysis.  Even if the government’s interest is compelling, the question is whether there is a way to achieve that interest without burdening the free exercise rights of the plaintiffs.  Is requiring Catholic entities to perform or finance gender transition the “only feasible means to achieve its compelling interest,” asks the court.  Here, resorting to the Supreme Court’s Hobby Lobby case, Welte suggests that “the most straightforward way of doing this would be for the Government to assume the cost of providing gender transition procedures for those unable to obtain them under their health-insurance policies due to their employers’ religious objections.” And, he opined, “if broadening access to gender-transition procedures themselves is the goal, then ‘the government could assist transgender individuals in finding and paying for transition procedures available from the growing number of healthcare providers who offer and specialize in those services,’”  quoting Franciscan Alliance, a decision from the Northern District of Texas that had preliminarily enjoined the government from bringing enforcement actions under Section 1557 against religious objectors.  (That injunction was dissolved when the Trump Administration indicated to that court that it did not intend to enforce Section 1557 against religious objectors and would replace the 2016 Obama Administration regulation with one that did not require such coverage.) And, said the court, the Defendants had not shown that “these alternatives are infeasible.”

Thus, the court granted summary judgment and issued a permanent injunction against enforcement of Sec. 1557 or Title VII against the Catholic Plaintiffs in this case.  The court did not issue a nationwide injunction, however, limiting its injunction to the plaintiff organizations in this case, and as noted finding that the state of North Dakota did not have standing on these questions, rejecting its Spending Clause argument that the government was wrongly coercing the state to fund gender transition through the Medicare and Medicaid programs.

It is worth noting that this litigation was not brought on by an actual case of a transgender individual seeking gender transition services from a Catholic health care organization, or the employee of a Catholic entity challenging the failure of the employer’s health insurance to cover the procedures, or in response to a challenge to the state’s failure to cover these procedures for its employees or Medicaid participants.  This was affirmative litigation brought by the state and the Catholic plaintiffs preemptively, seeking to establish judicial cover for their discriminatory policies.  As such, and significantly, the interests of transgender people were not directly represented in this case although the ACLU participated as amicus curiae.   (Curiously, the Westlaw report of the case did not list the ACLU among counsel, but the Lexis report did as of January 23 when this account was written.)  The Plaintiffs were represented by the North Dakota Attorney General’s Office, The Becket Fund for Religious Liberty, and private counsel for several of the Catholic institutional plaintiffs.  The government (i.e., the Trump Administration) was represented by the Justice Department and the U.S. Attorney’s Office for North Dakota, which of course was happy to let the Plaintiffs win in light of the Administration’s position opposing the Bostock ruling and their issuance of the 2020 Regulation (which the court could plausibly have found mooted the case, were it not for the fact that he was ruling the day before President Biden was to be inaugurated).  Now it is up to the Biden Administration to take over and appeal this decision to the 8th Circuit, in light of the President’s January 20 Executive Order.

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Trump Administration’s 11th Hour Attempt to Restrict Refugee Claims Blocked by Federal Court

The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11.  District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position.  The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations.  Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.

The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General.  During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return.  Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”

In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.”  In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.

As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts.  Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants.  As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.

Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors.  Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment.  Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month.  The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato.  Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case.  The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.

In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS.  By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed.  Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed.  Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary.  Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.”  Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid.  McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned.  Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.

Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect.  At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case.  For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.

Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts.  The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending.  “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented.  “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise.  It did not.”  To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy.  In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”

“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”

This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case.  Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.

Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated.  Issuing the preliminary injunction was a promising first step.

Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.

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Nevada Supreme Court Holds Obergefell Requires Retroactive Recognition of Out-of-State Same-Sex Marriages (but Not Civil Unions) for Community Property Purposes

The Supreme Court of Nevada unanimously ruled on December 23 that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), must be applied retroactively in determining the commencement date of the marital “community” for purposes of dividing assets in a divorce, but such constitutionally-demanded retroactivity extends only to marriages, not to civil unions.  LaFrance v. Cline, 2020 WL 7663476, 2020 Nev. Unpub. LEXIS 1209.

Mary Elizabeth LaFrance and Gail Cline, Nevada residents, went to Vermont to have a civil union ceremony in 2000, returning home to Nevada.  In 2003, when same-sex marriage became available in Canada, they went there and got married, then returned to their home in Nevada.  In 2014, they decided to break up their marriage and filed for judicial dissolution.  That was the year that a lawsuit brought marriage equality to Nevada, in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014).  Nevada is a community property state, and it became necessary for the trial court to decide what property and assets were part of the “community” for purposes of division of assets.  Responding to LaFrance’s argument as of 2018 when the Clark County 8th Judicial District Court had to decide, Judge Mathew Harter concluded that pursuant to Obergefell he should find that the community came into effect when the parties entered into their civil union in 2000, and divided property accordingly.  LaFrance appealed, contending that for purposes of Nevada law, their marital community didn’t come into effect until the Latta decision in 2014.

The Nevada Supreme Court decided that both parties were incorrect.  Under Nevada law as of the time the petition for dissolution was filed, a civil union from Vermont could be recognized for these purposes but only if the parties had registered their civil union as a domestic partnership with the Nevada Secretary of State, and these women had not done so.  Thus, the court held in an opinion by Chief Justice Kristina Pickering, Judge Harter erred in dating the community from 2000.

On the other hand, the court ruled, the 2003 Canadian marriage should be deemed the date when the community was formed.  Even though it was not recognized in Nevada at that time, the court found that it must be retroactively recognized pursuant to Obergefell.

“In 2015, before the parties’ divorce was finalized, the United States Supreme Court decided Obergefell,” wrote Chief Justice Pickering.  “The Court in Obergefell held that ‘the right to marry is a fundamental right,’ and that each state must ‘recognize a lawful same-sex marriage performed in another State.’  Although the Supreme Court has not opined on the retroactive effects of its Obergefell holding, the Supreme Court has ‘recognized a general rule of retrospective effect for [its] constitutional decisions,’” citing Harper v. Virginia Department of Taxation, 509 U.S. 86, 94 (1993).  Since the parties’ divorce was not finalized until after Obergefell was decided, the court concluded that “the Supreme Court’s constitutional decision in Obergefell, requiring states to recognize same-sex marriages, applies retroactively to the parties’ 2003 Canadian marriage.”  Thus, 2003 is the commencement date for the marital community.

LaFrance protested that this was unfair, arguing that she and Cline had been operating all those years under the assumption that they did not have any legal rights as a couple in Nevada throughout the period of their Canadian marriage.  (Recall that Latta was not decided until the year they initiated their divorce proceedings, the year prior to Obergefell.)  No matter, said the court.  “Nevada must credit the parties’ marriage as having taken place in 2003 and apply the same terms and conditions as accorded to opposite-sex spouses.  These conditions include a presumption that any property acquired during the marriage is community property, NRS 123.220, and an opportunity for spouses to rebut this presumption by showing by clear and certain proof that specific property is separate.”

Thus, the property division issue was remanded to Judge Harter “to apply community property principles, including tracing, to the parties’ property acquired after their 2003 Canadian marriage.”

Justice Abbi Silver recused herself from the case voluntarily.  The version of the opinion issued on Westlaw and Lexis as of the end of December did not list counsel for the parties.

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N.Y. Appellate Division 2nd Department Overrules Precedent, Holding False Imputation of Homosexuality is not Defamatory Per Se

In Laguerre v. Maurice, 2020 WL 7636435, 2020 N.Y. App. LEXIS 8011, 2020 NY Slip Op 07887 (2nd Dept., Dec. 23, 2020), a panel of the N.Y. Appellate Division, 2nd Department, abandoned a departmental precedent dating from 1984, Matherson v. Marchello, 100 App. Div. 2d 233, finding that today a false statement that the plaintiff was a homosexual who watched gay porn on his employer’s computer is not defamatory per se and thus a complaint to that effect must be dismissed for failure to allege special damages.  The court noted with approval the 3rd Department’s 2012 decision in Yonaty v. Mincolla, 97 App. Div. 3d 144, which was the first intermediate appellate ruling in New York to abandon prior case law on this point.  Justice Sheri Roman wrote the opinion for the panel.

Pierre Delor Laguerre was an elder in the Gethsemane Seventh Day Adventist Church in Brooklyn.  He claims that he had a falling out with Pastor Jean Renald Maurice, the defendant, which, according to Justice Roman’s summary, “initially centered around church-related issues, and that Pastor Maurice stated that, if the plaintiff ‘did not submit to him,’ Pastor Maurice would ‘crumble’ the plaintiff.”  According to the complaint, Maurice stated that he would “make false statements against the plaintiff and have the church membership vote to relieve the plaintiff of his responsibilities at the church.”  Laguerre claims that before a congregational meeting with about 300 members in attendance, Maurice made the false statement concerning Laguerre, thus prompting the congregation to vote as Maurice requested.  Laguerre is for per se defamation.

Pastor Maurice moved to dismiss the complaint on three grounds.

First, he argued, the court lacked jurisdiction because this was essentially an ecclesiastical matter.  Laguerre countered that the question of defamation could be decided as a matter of civil law without reference to any religious doctrine, and the trial judge, Justice Devin P. Cohen of Kings County Supreme Court, agreed with Laguerre’s argument on this point and denied the motion to dismiss on jurisdictional grounds, and the Appellate Division panel found this ruling to be correct.

Second, Maurice argued that his statement was privileged under the “common interest” rule, contending that a communication from a pastor to a congregation on a church-related matter could not be made the basis of a defamation claim.  While acknowledging the existence of the privilege, Justice Cohen found that Laguerre’s allegations support the argument that the privilege was lost in this case because the statement was made with “malice,” noting Laguerre’s allegation that Pastor Maurice had threatened to make a false statement about Laguerre to persuade the congregation to terminate his status.  Knowingly making a false statement of fact with malice is not privileged.  The appellate panel also found this ruling to be correct.

However, Pastor Maurice was more successful with his third argument on appeal, that the alleged statement was not defamatory per se.  Laguerre’s complaint relies on Matherson v. Marchello, cited above, to contend that in the 2nd Department a false imputation of homosexuality is automatically actionable as per se defamation.  That is, in ruling on a motion to dismiss, a trial court in the 2nd Department should presume that such a statement would harm the reputation and livelihood of the plaintiff, so the plaintiff would not have to allege special damages such as economic injury in order to maintain his action.  At the time Matherson was decided, there were rulings by all four Appellate Departments to similar effect.  However, the 3rd Department broke ranks in 2012 with Yonaty.  The Court of Appeals has not ruled on the question, so the matter is left to be decided by each Appellate Division department.  Given the state of precedent in the 2nd Department, Justice Cohen had denied the motion to dismiss on this ground as well.  Laguerre appealed Cohen’s decision on all three grounds.

Finding the reasoning of Yonaty to be persuasive, the 2nd Department now holds that Matherson and the earlier cases that it had cited “are inconsistent with current public policy,” wrote Justice Roman.  “This profound and notable transformation of cultural attitudes and governmental protective laws impacts our own consideration of stare decisis,” she wrote.  The court recited a litany of legal developments since 1984, particularly noting the Supreme Court’s 2003 decision in Lawrence v. Texas striking down as unconstitutional a Texas statute outlawing homosexual sex and that court’s 2015 decision in Obergefell v. Hodges finding a constitutional right for same-sex couples to marry.  The court also noted that New York has banned sexual orientation discrimination in employment, housing and public accommodations since 2002 and enacted its own marriage equality law in 2011.

Thus, there is today no necessary presumption that falsely calling somebody homosexual will harm their reputation, and such a statement no longer falls within the sphere of cases in which reputational harm can be assumed on ground of criminality, professional disqualification or the imputation of a “loathsome illness.”  A false statement that does demonstrably cause economic harm to the plaintiff could still be the basis of a defamation claim, but such harm would have to be alleged and factually supported in the complaint.  Although the court does not discuss the point, it seems likely that being an elder in the church did not make Laguerre an employee and so the loss of his position did not inflict an economic injury on him; otherwise, he might have alleged that as special damages.

“Based on the foregoing,” wrote Justice Roman, “we conclude that the false imputation of homosexuality does not constitute defamation per seMatherson’s holding to the contrary should no longer be followed.  Therefore, the plaintiff was required to allege special damages.  He failed to do so, and, consequently, his cause of action alleging defamation per se must be dismissed.”

The unanimous panel of the 2nd Department in this case included, in addition to Justice Roman, Justices Cheryl E. Chambers, Sylvia O. Hinds-Radix, and Colleen D. Duffy.  Laguerre is represented by Maurice Dean Williams of The Bronx, and Pastor Maurice by the firm of Lester Schwab Katz & Dwyer of Manhattan.

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Federal Court Issues Preliminary Injunction against Trump’s Anti-Diversity Training Executive Order

A federal court in San Jose, California, issued a preliminary injunction on December 22 against enforcement of two key provisions of President Donald Trump’s Executive Order 13950, which prohibits the Defense Department, civilian federal agencies, federal contractors and grant recipients from carrying out diversity and inclusion training programs that include concepts offensive to President Trump. District Judge Beth Labson Freeman found that the plaintiffs, a group of LGBT and AIDS organizations that provide such training to their staffs and to other organizations, had standing to challenge the portions of the Order that are applicable to their activities on 1st and 5th Amendment grounds and were sufficiently likely to be successful that they were entitled to a preliminary injunction while the case is pending.  Santa Cruz Lesbian and Gay Community Center v. Trump, Case No. 20-cv-07741-BLF (N.D. Cal., San Jose Div., Dec. 22, 2020).
Trump signed his Executive Order on September 22, a few weeks after the federal Office of Management & Budget (OMB) had issued a similar memorandum to federal agencies on “Training in the Government,” warning against agencies conducting diversity training that includes concepts that Trump had disapproved in a prior internal executive branch directive. The memo described as “divisive, un-American propaganda training sessions” any activities that would relate to such subjects as “critical race theory,” “white privilege,” or any suggestion that the U.S. is “an inherently racist or evil country.” In short, the memo, and the subsequent Executive Order, paints a cartoonish and exaggerated picture of the kind of diversity training sessions that have become widespread through both the private and public sectors in recent years, responding to an expanding professional literature about unconscious bias and implicit racism and sexism.
The Executive Order targets diversity training in the armed forces (section 3), in civilian federal agencies (section 6), in organizations that have contracts with the federal government (section 4), and in organizations that receive grants from the federal government to carry out programs (section 5). The Order seeks to censor the content of such training programs, even if they are not specifically funded by the federal government or are not the subject matter of a federal contract or grant, as long as they are conducted by organizations that have federal contracts or receive federal grants. OMB issued a memorandum on September 28 detailing how the Order would be enforced.
Within weeks of Trump signing the Order, organizations theoretically affected by the ban started to cancel diversity programs, some of which were provided by some of the organizations that are among the plaintiffs in this lawsuit filed by Lambda Legal and cooperating attorneys from the law firm Ropes & Gray. Some individual consultants who provide diversity training services also reported cancellation of programs for which they were contracted.
The lead plaintiff is the Santa Cruz Lesbian and Gay Community Center, which also operates under the name “Diversity Center of Santa Cruz.” Other organizational plaintiffs include the Los Angeles LGBT Center, The AIDS Foundation of Chicago, the Bradbury-Sullivan LGBT Community Center in Lehigh Valley, Pennsylvania, the NO/AIDS Task Force in New Orleans, and SAGE (headquartered in New York). The government’s initial response to the lawsuit was to deny that the plaintiffs had “standing” to sue, or that any of their constitutional rights were threatened or violated. Among other things, the government argued that the 1st Amendment does not restrict it from deciding how federal money will be spent or the content of training offered to federal employees.
Turning to standing, it quickly became clear to the court and the parties that the plaintiffs, all private sector organizations, could most easily satisfy standing requirements to challenge sections 4 and 5, dealing with contractors and grant recipients, because all the organizational plaintiffs either have federal contracts or receive federal grants. Indeed, for some of them a majority of their funding comes from the federal government, and the court found that the possibility that the restrictions in the EO will be enforced against them are not merely hypothetical, given the enforcement directives of the OMB memo and the cancellation of programs that have already occurred because presenting organizations feared losing federal contracts or funding.
The court also found that despite some lack of clarity in the Order about what could or could not be included in training programs, because of the vague and convoluted language (which is typical of Trump Administration executive orders), it was very likely that the plaintiffs would be targeted for enforcement because of the content of their training programs.
“The September 28 Memorandum issued by the OMB Director specifically directs agencies to identify entities that promote the prohibited “divisive concepts” by doing keyword searches for the terms “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias,” wrote Judge Freeman. “As Plaintiffs’ counsel commented at the hearing, these keyword searches may as well have been designed to target Plaintiffs.”
Having established standing concerning sections 4 and 5, the court turned to the four-part test for preliminary relief: likelihood of success on the merits, irreparable harm to plaintiffs if the injunction is not issued, balance of the equities as between the plaintiffs and the government, and the public interest. The court found that all four tests are satisfied.
The Supreme Court’s decisions on similar claims have engaged in difficult line-drawing between the degree to which the government can control the speech of contractors and grantees and the degree to which they retain freedom of speech with respect to issues of public concern. Opposing the motion, the government claimed that it was within its rights to impose these restrictions, but Judge Freeman found that the plaintiffs’ training programs were entitled to 1st Amendment protection, especially when it came to training they did of their own employees as part of their goal to provide appropriate non-discriminatory service to their clients. The Order seeks to control that, even when the federal contract has nothing to do directly with diversity training, likewise with grantees. Furthermore, the training directly involves matters of public interest and concern.
“Although the Government has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds,” wrote Judge Freeman, “that interest can be protected by narrowing the scope of this preliminary injunction. Thus, the Government’s interest is outweighed by the effect of the impermissible reach of the Executive Order on Plaintiff’s freedom to deliver the diversity training and advocacy they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”
Several major research universities submitted an amicus brief in support of plaintiffs, pointing out how the section 5 restrictions “appear to require universities that accept federal grants to curtail promotion of these concepts through teaching, training and discussion. The 8 Institutions of Higher Education argue persuasively that “scholars need to be able to give voice to, and indeed ‘endorse,’ opposing views in order for intellectual progress to occur. The Order inhibits this advancement – which is a core component of amici’s missions.”” The court saw in the OMB memorandum that the implementation directive was aimed at “actually imposing the condition on as many grant programs as possible,” presenting a clear threat to freedom of speech in the academic setting.
As to the Due Process claim, the language of the EO and the OMB memorandum, while specific in some respects, was vague in others, so that a contractor or grantee might have difficulty determining whether particular subjects in their diversity training programs were covered by the Order. The court found that an FAQ section in the OMB Memo made the ambiguity even worse. “In conclusion,” wrote Freeman, “the Court finds wholly unpersuasive the Government’s assertions that Sections 4 and 5 of the Executive Order are clear or that any ambiguities may be easily resolved,” so plaintiffs were likely to succeed in showing that those sections are void for vagueness in violation of the Due Process Clause of the 5th Amendment.
Furthermore, the chilling of 1st Amendment rights is generally deemed to be an “irreparable injury” by the federal courts, and the protection of 1st Amendment rights is generally deemed to be within the public interest, so the court concluded that the tests for preliminary injunctive relief had been satisfied, and that narrowing the scope of the injunction to Sections 4 and 5 was sufficient to meeting the Government’s objection. The court accepted the plaintiffs’ argument that only a nationwide injunction would suffice, given the geographical diversity of the co-plaintiffs and the scope of their training activities, which were certainly not confined to the northern California counties within the judicial district of the court. Similarly, Judge Freeman rejected the argument that injunctive relief should be limited to the plaintiff organizations and individuals, and noted that the plaintiffs had not asked for the injunction to run personally against the lead defendant, one Donald J. Trump, but rather against the government agencies that would enforce the Order.
If the Trump Administration follows its usual course, it will seek a stay of the injunction from the court while it appeals to the 9th Circuit. But perhaps, since the Trump Administration has only a month to go, it may not bother to seek immediate review.

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Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution.  Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted.  Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee.  Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy.  That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity.  Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity.  All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio.   State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition.  Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed.  Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14th Amendment, as well as their Free Speech rights under the 1st Amendment.  Having ruled in favor of the plaintiffs on their 14th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright.  The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record.  Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate.  The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification.  On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy.  Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing.  Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so.  What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances.  A person who gets a legal name change can get a new birth certificate showing their new legal name.  After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents.  The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case.  Furthermore, the state could attempt to appeal this ruling to the 6th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn.  Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

 

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Supreme Court Lets Stand 7th Circuit Decision on Lesbian Spouses and Birth Certificates

The U.S. Supreme Court has refused to review a ruling by the 7th Circuit Court of Appeals in Henderson v. Box, 947 F.3d 482 (2020), that the state of Indiana must extend to married lesbian couples the same parentage presumption it applies to married different sex couples: that a birth mother’s spouse is presumed to be a parent of her child, that  the child be deemed born “in wedlock,” and that both mothers be named as parents on the birth certificat.  On December 14, the Supreme Court denied the State of Indiana’s petition to review that ruling without explanation or any dissent.  Box v. Henderson, 2020 WL 7327836 (Dec. 14, 2020).

On one hand, this action might be seen as routinely expected, because the Supreme Court decided a similar case from Arkansas exactly this way in 2017.  In Pavan v. Smith, 137 S. Ct. 2075, the Court voted 6-3 to reverse a decision by the Arkansas Supreme Court.  That opinion was issued per curiam, although a close reading would identify the hand of Justice Anthony M. Kennedy, Jr., author of the Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court not only said that same-sex couples have a constitutional right under the 14th Amendment to marry, but also that such marriages must be treated by the states as equal in every respect to the marriages of different sex couples.  In Obergefell, Justice Kennedy specifically mentioned listing on birth certificates as one of the incidents of legal marriage from which same-sex couples had previously been excluded.

Justice Neil Gorsuch wrote a dissenting opinion in Pavan, joined by Justices Samuel Alito and Clarence Thomas, arguing that the Obergefell ruling did not necessarily compel the conclusion stated by the Court and that the Court should have scheduled briefing and a full hearing on the question rather than issue a summary per curiam ruling.

Since Pavan was decided, Justice Kennedy has retired and Justice Ruth Bader Ginsburg has died, being replaced respectively by Justices Brett Kavanaugh and Amy Coney Barrett, both religious conservatives.  When Indiana filed its petition for review in the Henderson case last spring, Justice Ginsburg was still on the Court and the Pavan v. Smith majority was intact.  The same-sex couples who had filed the lawsuit, represented by the National Center for Lesbian Rights, did not even file an opposition, assuming the Court would dismiss the petition.  But with Justice Ginsburg’s death and replacement, the calculus had changed, as the Pavan 6-member majority had been reduced to a 4-member minority of the Court.  The Supreme Court then requested the plaintiffs to file a reply to Indiana’s petition for review, and the possibility appeared that the Supreme Court might take up the issue anew.

At the heart of Indiana’s case was the contention that the presumption that a husband is the father is reality-based in biology, and there is no such basis for a reality-based presumption for the wife of a woman who gives birth, although the 7th Circuit had observed that one of the lesbian couples in the case comprised two biological mothers, as the second mother had donated the egg that was gestated by the birth mother.

Be that as it may, Indiana, in common with other states, has never treated the father’s parental status as conclusive, since it could be rebutted by evidence that a different man was the biological father, and ultimately a birth certificate records legal parentage, not biological parentage, as in the new birth certificates that are issued upon a child’s adoption.  The trial court, and ultimately the 7th Circuit, related that Indiana relied on self-reporting by the mother in determining a man’s name to record on a birth certificate, and the form the birth mother is given asks for the name of the father, not explicitly the name of the biological father, making it likely that many men are named as fathers on birth certificates despite the lack of a biological tie to the child.

Ultimately, wrote the 7th Circuit, “The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed.”

By refusing to review this ruling, without any explanation or dissent by the conservative justices, the Supreme Court seems to have put the seal on this issue.  This is particularly reassuring in light of gratuituous comments by Justice Alito (joined by Justice Thomas) in a statement he issued when the Court refused to review former Kentucky county clerk Kim Davis’s petition to review an award of damages against her for refusing to issue marriage licenses to same-sex couples after the Obergefell decision was announced.  Davis v. Ermold, 2020 U.S. LEXIS 3709, 2020 WL 588157 (October 5). In Alito’s statement, and remarks he later delivered to a conservative public forum, Alito sharply criticized the Obergefell decision and suggested that the Court needed to “fix” the problems that ruling created for those with religious objections to same-sex marriage.  This focused renewed attention on the Henderson case and the possibility that the Court would take it and rule in a way that would detract from the equal legal status of same-sex marriages.  The decision not to take this case may represent an important bullet dodged for now.

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Michigan Claims Court Issues Split Ruling on State’s Public Accommodations Law

Michigan Court of Claims Judge Christopher M. Murray issued an opinion on December 7 in Rouch World v. Michigan Department of Civil Rights, Court of Claims Case No. 20-000145-MZ, holding that the state’s Elliot-Larsen Civil Rights Act (ELCRA), which, among other things, prohibits businesses from discriminating against customers because of their sex, cannot be interpreted by his court as banning sexual orientation discrimination, because the state’s Court of Appeals rejected the argument that sexual orientation discrimination is covered by the Act in a 1993 ruling.

On the other hand, finding that there is no Michigan court ruling on whether the ELCRA’s sex discrimination ban can be applied to discrimination against transgender people, Judge Murray followed the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 140 S. Ct. 1731, which interpreted the federal ban on sex discrimination in employment to apply to claims of discrimination based on transgender status.

Michigan Attorney General Dana Nessel announced that she would appeal Murray’s ruling as to sexual orientation discrimination, while the business that faces a gender identity discrimination claim announced that it would appeal that ruling.

Murray’s opinion concerned discrimination claims against two businesses.  Rouch World, an events venue that rents space for weddings and other celebrations, refused to book an event for a same-sex couple, citing the owners’ religious objections to same-sex marriages.  Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.

In both cases, the rejected customers filed complaints with MDCR, which began investigations pursuant to its Interpretative Statement 2018-1, which states that the ELCRA can be interpreted to cover such claims.  In both cases, the businesses subsequently filed suit in the Court of Claims, arguing that the Department does not have jurisdiction over sexual orientation and gender identity claims, and even if it did, that their religious objections privileged them to deny the services.  The plaintiffs asked the court to put an end to the investigations.

Judge Murray explained that the ELCRA does not define the word “sex” as used in the provision applicable to claims of discrimination by “a place of public accommodation,” which includes businesses selling goods or services to the public.  In 1993, the Michigan Court of Appeals ruled in Barbour v. Department of Social Services, 497 N.W. 2d 216, that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.”  That decision is binding on trial courts in Michigan.  Judge Murray explained that “whether Barbour’s reasoning is no longer valid in light of Bostock v. Clayton County, and cases containing similar reasoning, is a matter for the Court of Appeals, not this court.”  Consequently, Attorney General Nessel, herself an out lesbian who helped persuade the Department to issue Interpretative Statement 2018-1, will appeal this part of the ruling to the Court of Appeals.

On the other hand, Murray found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by the ELCRA.  Lacking such authority, Michigan courts will look to decisions concerning other statutes with similar language as well as federal rulings for interpretative guidance.  This brings the Bostock decision into play.

Significantly, the Michigan Supreme Court recently vacated a Michigan Court of Appeals ruling in a case under the ethnic intimidation statute for reconsideration in light of Bostock.  In that case, People v. Rogers, 331 Mich. App. 12, vacated, 950 N.W. 2d 48 (2020), the Court of Appeals ruled that the ethnic intimidation statute’s listing of sex does not cover hate crimes against transgender people.  The Michigan Supreme Court told the Court of Appeals to reconsider that ruling in light of Bostock, a clear signal that the Michigan court is prepared to treat the Bostock decision as a persuasive precedent for interpreting the state’s sex discrimination laws.

“Following the Bostock Court’s rationale,” wrote Murray, “if defendants determine that a  person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures.  Nothing in the ELCRA would preclude that action.”

The bottom line of Judge Murray’s decision is that the Department does not have jurisdiction of the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals decides to overrule its old Barbour decision, but that the Department does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client, at least so far as interpretation of the ELCRA goes.  Of course, the Supreme Court’s remand in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider Barbour in light of Bostock.

The court refrained from ruling on the religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.”  The question of federal constitutional religious exemptions from compliance with state or local anti-discrimination laws is now before the U.S. Supreme Court in Fulton v. City of Philadelphia, which was argued on November 4 and will be decided sometime in 2021.  It is likely that many state agencies and courts dealing with religious exemption claims by civil rights defendants may delay ruling on such claims until the Supreme Court rules in Fulton.

Judge Murray ended his opinion by stating, “This is not a final order as it does not resolve all of the pending issues in this case.”  This cryptic remark implies that Uprooted Electrolysis may not immediately appeal the court’s determination that the ELCRA applies to the transgender discrimination claim, since its religious exemption claim has not yet been ruled upon.  However, the declaration that the MDCR does not have jurisdiction over the sexual orientation claim against Rouch World seems final as to that complaint, so Attorney General Nessel may be able to appeal that ruling.

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