New York Law School

Art Leonard Observations

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

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Supreme Court Rejects Appeals from Gay Death Row Inmate and Conversion Therapy Practitioners

The U.S. Supreme Court announced on April 15 that it will not hear an appeal by gay death row inmate Charles Rhines, who contends that the jury that chose death over life in prison without parole in his murder trial in 1993 was tainted by homophobic statements by some of the jurors during deliberations.  Rhines v. Young, No. 18-8029 (filed Feb. 15, 2019).  At the same time, the Court announced that it will not take up the question whether the U.S. 3rd Circuit Court of Appeals, based in Philadelphia, should reconsider its 2014 decision to reject a constitutional challenge to a New Jersey law prohibiting licensed health care providers from providing “conversion therapy” to minors.  King v. Murphy, No. 18-1073 (filed Feb. 11, 2019). Both of these petitions for review were considered long shots at best.

The South Dakota Attorney General’s Office filed a short reply to Rhines’ petition, insisting that its own investigation of the jury – sparked by his contentions – had failed to substantiate his claim that the jurors sentenced him to death because he is gay.   There is no doubt that a juror joked that Rhines, as a gay man, would enjoy being locked up for life in an all-male environment where he would be able to mingle with other prisoners and enjoy sexual contacts, as even interviews conducted by the AG’s office confirmed this.  Interviews of jurors by Rhines’ lawyers, conducted long after the trial, produced a range of recollections, ranging from a recollection that the juror in question was challenged for his remarks and apologized, to a recollection that there was considerable discussion of Rhines’ sexuality, which had been a topic of testimony during the penalty phase of the trial, when a family member testified that Rhines had struggled with his sexuality.

The jury sent a note to the trial judge during penalty deliberations, posing a series of questions about the conditions under which Rhines would be serving if he were sentenced to life without parole. Some of the questions inspired concerns by Rhines’ defense attorney that the jurors were inappropriately taking his sexual orientation into account in making their decision. The trial judge refused to respond to the questions, instructing the jurors to rely on the instructions he had previously given them.

Rhines has spent a quarter-century on death row since his conviction and sentencing, seeking to get courts to set aside the death sentence based on a variety of theories, but his hopes were spurred by a Supreme Court decision last year, holding that a court could breach the usual confidentiality of jury deliberations when there was evidence of inappropriate race discrimination by a jury.  Had the Court taken Rhines’ case, it would have provided an opportunity to determine whether juror homophobia should receive the same constitutional evaluation as jury racism.

Unfortunately, the federal courts in South Dakota and the 8th Circuit Court of Appeals found that this issue was not raised early enough in the appellate process, and that Rhines’ attempt to bring a fuller account of the juror interviews before the courts came too late.  As a result, no court has ever considered Rhines’ evidence of jury homophobia on the merits.  The Supreme Court had turned down a prior attempt by Rhines last year, while a prior appeal was pending before the 8th Circuit.  After the 8th Circuit rejected his latest attempt, Rhines filed a new petition, but in vain.

Publicity to his plight resulted in the submission of three briefs in support of his petition, by a Law Professors group, the NAACP Legal Defense & Education Fund, and the American Civil Liberties Union.  Although the Court granted the motions to receive those briefs, it rejected Rhines’ petition without comment.

The conversion therapy petition posed a novel question to the Court.  Should it order a federal appeals court to reopen a decision that had received unfavorable mention in a recent Supreme Court opinion in an unrelated case, when the Supreme Court itself had years ago rejected a petition to review the appeals court decision?

Conversion therapy practitioners filed a constitutional challenge to the New Jersey law banning conversion therapy, claiming it violated their constitutional free speech rights.  The federal district court and the 3rd Circuit Court of Appeals both rejected their argument.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015).  The speech involved was “professional speech,” said the court of appeals, and thus entitled to less protection than political or literary speech.  The 3rd Circuit’s ruling reached the same result as a ruling by the San Francisco-based 9th Circuit in rejecting an earlier challenge to California’s conversion therapy ban, but the 9th Circuit had opined that the regulation of therapy was not subject to 1st Amendment challenge because it was a regulation of health care practice, not specifically aimed at speech as such.  These distinctions did not affect the outcome of the two cases.  Either way, the courts found that the state’s legitimate concerns about protecting minors from a practiced that he been condemned by leading professional associations outweighed the practitioners’ free speech claims.

However, in a new case arising from California last year, Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (June 26, 2018), the Supreme Court found fault with a state law that required licensed clinics providing services to pregnant women to advise them of the availability of abortion services from the state.  The Supreme Court found this to be “compelled speech” subject to the most demanding level of judicial review, “strict scrutiny.”  The state’s argument defending this requirement relied on the conversion therapy cases, arguing that the speech in question was “professional speech” subject to a less demanding level of judicial review.  Writing for the Court, Justice Clarence Thomas rejected that argument, and he specifically mentioned the 3rd Circuit’s ruling with disfavor.

Even though the Supreme Court had refused a petition to review the 3rd Circuit’s ruling in 2015, the conversion therapy practitioners asked the 3rd Circuit to reconsider its ruling in light of the Supreme Court’s negative comments about the earlier decision.  The 3rd Circuit refused, and this petition for Supreme Court review was filed on February 11.  Counsel for the respondents – New Jersey’s Attorney General and Garden State Equality, which had intervened as a co-defendant in the original case – thought so little of the petitioners’ chances that they did not file briefs in opposition.  Their confidence was justified.  It was never likely that the Supreme Court would order a circuit court to reopen a case from years ago that had already been denied direct review by the Supreme Court.

The Supreme Court’s April 15 announcements, deriving from its April 12 conference, failed to include any mention of five other pending cases related to LGBT rights that are being closely watched.  The Court will hold another conference to discuss pending petitions on April 18 (a day earlier than normal because of the Good Friday holiday on April 19), so there may be word on April 22 whether the Court will address sexual orientation and gender identity discrimination issues next term, as well as another “gay wedding cake” case.

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Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).

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5th Circuit Panel Rules Denial of Gender Confirmation Surgery for Transgender Inmate Does Not Violate 8th Amendment

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled by a vote of 2-1 on March 29 that the state of Texas did not violate the 8th Amendment right against cruel or unusual punishment by denying gender confirmation surgery to transgender inmate Vanessa Lynn Gibson.  Gibson v. Collier, 2019 WL 1417271, 2019 U.S. App. LEXIS 9397.  The dissent argued that the substantive legal question was not properly before the court.  The majority took the position that a state may categorically refuse to provide gender confirmation surgery (or, as they labelled it, “sex reassignment surgery”) as a treatment for gender dysphoria, regardless of the needs of the individual inmate.

The opinion for the panel was written by James C. Ho, who was nominated by President Donald Trump to fill one of the long-standing vacancies on the 5th Circuit that was preserved by Senate Majority Leader Mitch McConnell’s determined effort to block President Obama from filling circuit court vacancies that opened up during his second term.  The retirement of an active judge created this vacancy in 2013.  Upon confirmation by the Senate, James Ho joined the court on January 4, 2018.  He was previously Solicitor General of Texas, and active in the Federalist Society.  Joining Ho’s opinion was Circuit Judge Jerry Edwin Smith, who was appointed to the court by President Ronald Reagan.  The dissenter was Senior Circuit Judge Rhesa Hawkins Barksdale, who was appointed by President George H. W. Bush.  (President Trump has appointed five out of the sixteen current active judges on the circuit court, among whom two were appointed by President Bill Clinton and three by President Barack Obama.  There is on vacancy pending on the 5th Circuit.)

Judge Ho’s opinion rests on two simple propositions.  Under the 8th Amendment’s text and case law concerning the rights of inmates to medical treatment, denying an inmate a treatment that is controversial within the medical profession and which has rarely if ever been provided to inmates cannot be held to violate the Amendment.  For one thing, he argued, denying sex reassignment surgery is not rare.  Indeed, it is a matter of course, since by his account only once in the nation’s history has any state prison system provided sex reassignment surgery to an inmate, when California recently settled a lawsuit by agreeing to provide sex reassignment surgery to the plaintiff.  Thus, denying such a procedure is not “rare,” and the 8th Amendment only prohibits punishments that are cruel and unusual.  On the other point, he wrote, the case law supports the proposition that the state only violates the 8th Amendment if it exhibits deliberate indifference to a serious medical condition, a demanding test that requires that the treatment requested by the inmate be one as to which there is widespread agreement among health care providers about its necessity.  Thus, if there is significant disagreement among medical authorities about whether a particular treatment is necessary, it doesn’t violate the Constitution for the state to refuse to provide it.

The opinion sets out only the bare bones of factual allegations by plaintiff Scott Lynn Gibson (a/k/a Vanessa Lynn Gibson).  The court uses male pronouns to refer to Gibson, claiming that Gibson did not object, although the litigation papers Gibson prepared while pro se use feminine pronouns. Gibson is an inmate at the Gatesville facility of the Texas Department of Criminal Justice (TDCJ).  Gibson was incarcerated on conviction of two counts of aggravated robbery, and committed additional crimes in prison of aggravated assault, possession of a deadly weapon, and murder.  Upon further conviction, Gibson is sentenced to serve through May 2013, eligible for consideration for parole in April 2021.  Identified male at birth, Gibson has identified and lived as female since age 15, but was not diagnosed as having gender dysphoria at the time of incarceration.

The court accepts that Gibson has gender dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association, is depressed, and has attempted self-castration and suicide, although according to the record is not presently considered suicidal (although learning of this decision may well affect that).  It was not until after a suicide attempt that Gibson obtained a formal diagnosis.  Gibson has been receiving counseling and hormone therapy, but insists that surgery is necessary to ameliorate her condition. Despite living as a woman, Gibson is incarcerated per the state’s policy in a men’s prison. The state’s formal policy provides that transgender inmates be “evaluated by appropriate medical and mental health professionals and have their treatment determined on a case by case basis,” reflecting the “current, accepted standards of care.”  The policy does not mention surgery, but doctors have repeatedly denied Gibson’s request for surgery because the TDCJ formal policy does not “designate [sex reassignment surgery] as part of the treatment protocol for Gender Identity Disorder.”

Gibson represented herself in this lawsuit until it reached the level of the Court of Appeals, at which point the court appointed counsel to represent Gibson on appeal: Stephen Louis Braga, I, of the University of Virginia Law School’s Appellate Litigation Clinic. This appointment is apparently only for the appeal; had the case been remanded, Gibson would presumably be pro se again.  From the court’s account of oral argument, referred to several times in the opinion, it appears that Braga made concessions at oral argument that supported the court’s ultimate conclusion because of how Judge Ho dealt with the facts, but it is clear that the court was most heavily influenced by a decision of the U.S. Court of Appeals for the 1st Circuit, Kosilek v. Spencer, 774 F. 3d 63 (1st Circuit, en banc, 2014), in which the full 1st Circuit bench reversed a three-judge panel’s 2-1 decision and held that a transgender inmate serving a sentence of life without parole was not entitled to receive sex reassignment surgery.  Most importantly, Judge Ho referred repeatedly to the 1st Circuit’s summary of expert medical testimony offered in that case, filling an important gap in this case’s record, where there is no direct expert testimony because the district court rejected Gibson’s claims outright.  Judge Barksdale’s dissent objects to heavy reliance on the Kosilek ruling in this way.

Prison inmates are entirely dependent on the corrections system for their health care, for obvious reasons.  The Supreme Court and lower federal courts have found that prisoners are entitled to “necessary treatment for serious medical conditions.”  There is a consensus among federal courts that gender dysphoria is a “serious medical condition,” but there is no judicial consensus about whether sex reassignment surgery is a necessary treatment for it, and to date there is no final ruling on the merits by any federal appeals court ordering a state to provide sex reassignment surgery to a transgender inmate.  As the courts have interpreted the 8th Amendment’s ban on cruel and unusual punishment, a “necessary” treatment is one that has achieved general acceptance in the relevant medical specialty, and some courts have relied on Standards of Care published by the World Professional Association for Transgender Health (WPATH) as potentially supporting general acceptance – however, Judge Ho asserts, only in denying motions to dismiss cases, not in ultimate rulings on the merits.

The WPATH Standards state that “for many, surgery is essential and medically necessary to alleviate their gender dysphoria.”  But, Judge Ho observes, in the Kosilek decision, the 1st Circuit reported expert testimony sharply divided over whether sex reassignment is necessary treatment, and some testimony suggesting that WPATH is not an objective source but rather an organization devoted to advocacy for transgender rights whose published standards do not necessarily reflect a consensus of the medical profession, or even of individuals specializing in providing treatment to transgender patients.  Be that as it may, to the Gibson panel majority, this was sufficient to suggest that there is “serious dispute” within the medical profession about the necessity for sex reassignment surgery, and so long as that situation prevails, it is not “deliberate indifference” by the Texas corrections system to categorically refuse to provide such treatment.

While many federal courts have made clear that hormone therapy can be considered necessary for cases of severe gender dysphoria, and that counseling by itself is not always sufficient to meet the constitutional standard of care, even that point is not universally accepted, as Judge Ho demonstrated by citing cases on both sides of the question.  Regardless of how the medical necessity point is resolved, however, the judge pointed out that under the 8th Amendment’s language – cruel and unusual – it is not unusual to deny sex reassignment surgery to inmates diagnosed with gender dysphoria – indeed, it is the norm – and thus such denial cannot be found to violate the Constitution as an “unusual punishment.”

Judge Barksdale’s dissent argued that Gibson has never been afforded the opportunity in the lower courts to present any evidence beyond the factual assertions in her complaint. “Accordingly,” she wrote, “as the majority notes correctly, this appeal springs from this very unusual and improper procedure and resulting sparse summary-judgment record, which is insufficient for summary judgment purposes,” so she dissented from “the majority’s reaching the merits of this action, which concerns the Eighth Amendment’s well-established requirements for medical treatment to be provided prisoners.”

Judge Ho specifically responds to Barksdale’s various objections by asserting that it would be a waste of time and judicial resources to remand the case to build a factual record because, as he found, categorical denial of a right to sex reassignment surgery is so well-founded in the existing case law and facts readily available from published sources, including the Kosilek decision, that there is no need to compile a record of the individual facts of Gibson’s case.  The panel majority considers that Gibson’s factual allegations fail to generate material fact issues that would need to be resolved before the court could render a decision on the merits as a matter of law. To the majority, there is no disputing that medical practitioners are divided as to whether sex reassignment surgery is a necessary treatment, so there is no need for inquiry into Gibson’s individual case.

Judge Ho drew an analogy to an attempt by an inmate to obtain a drug that the Food and Drug Administration (FDA) has not approved, pointing out that no court would find that a prisoner’s right to receive necessary treatment would be abridged by refusing to provide a treatment that has not been approved by the FDA.  He also relies on some outdated information concerning practices under Medicaid and Medicare, as the Obama Administration withdrew the formal refusal to fund sex reassignment surgery under those programs, and there actually is a small but growing body of case law finding that these government programs must provide such treatment in appropriate cases, consistent with the Equal Protection Clause.  There is also a U.S. Tax Court decision finding that the costs of sex reassignment surgery are tax deductible, based on its conclusion that it is a medical necessary treatment within the meaning of the Internal Revenue Code’s medical deduction provisions.  (Law Notes reports below a new decision by the Iowa Supreme Court holding that refusing to provide such treatment under the state’s Medicaid program violated the Iowa civil rights law’s ban on gender identity discrimination. EerieAnna Good and Carol Beal v. Iowa Department of Human Services, 2019 WL 1086614, 2019 Iowa Sup. LEXIS 19 (March 8, 2019).)  But what Ho is looking for is a professional medical consensus, not a legal consensus, and that has not yet been achieved, in the court’s view.

Gibson can seek rehearing en banc or petition the Supreme Court for further review.  Failing that, however, the precedent is now set for the states of the 5th Circuit – Texas, Louisiana and Mississippi – as they were previously set for the 1st Circuit – Maine, New Hampshire, Massachusetts, and Rhode Island, and Puerto Rico – that state corrections systems can categorically refuse to provide gender confirmation surgery to transgender inmates.

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Herrick Loses 2nd Circuit Appeal in Grindr Cyberharassment Case

A unanimous three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit issued a ruling on March 27 stating total agreement with District Judge Valerie Caproni’s earlier ruling in January 2018 that Grindr enjoys totally immunity from any liability for the harms suffered by Matthew Herrick, a gay Manhattanite whose ex-boyfriend created fake Grindr profiles in Herrick’s name that led more than a thousand people to contact Herrick at home and at work for “fetishistic sex, bondage, role playing, and rape fantasies.”

Unlike Judge Caproni, the appellate panel, consisting of Circuit Judges Dennis Jacobs, Reena Raggi, and Raymond J. Lohier, Jr., omitted some of the gory details from their brief “summary order” which does not have “precedential effect” but which nonetheless seems totally consistent with other court decisions interpreting Section 230 of the Communications Decency Act, a federal statute that Congress intended to crack down on internet pornography by requiring service providers, among other things, to enable parental controls over what minors can access on-line.

Herrick achieved some initial success when he first filed suit in a New York State court, getting a motion judge to grant a temporary restraining order requiring Grindr to disable the fake profiles.  But Grindr immediately removed the action to federal court and moved to dismiss it, citing Section 230, which as relevant to this lawsuit says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In other words, as found by Judge Caproni and the 2nd Circuit judges, Grindr is not responsible for the content of what users of its app post there.   Of course, there is nothing in this statute to prevent Herrick from suing his ex-boyfriend using various state law theories, but Grindr is essentially immune from liability for harm caused by content posted on its app by users.

Herrick’s attorneys ended up amending the original complaint that he had filed by himself in state court, in order to allege a wide array of possible legal theories seeking to escape Section 230 immunity, but to no avail.  The court found that all of Herrick’s claims arose out of “information provided by another information content provider” – that is, his ex-boyfriend – and thus all of them fell within the broad sphere of Section 230.  The provision has been liberally interpreted by federal courts to avoid imposing an extremely burdensome censorship obligation on operators of what the statute calls “interactive computer services,” which include “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”

As Judge Caproni found in her earlier decision, courts have found that “social networking sites like Facebook.com, and online matching services like Roommates.com and Matchmaker.com,” fall within this category, so its application to Grindr is not controversial.

Trying to get around this, the lawyers argued that Grindr is providing a defective product and is misrepresenting the safety of its site for users, but the court found that Grindr’s Terms of Service published on its site provide adequate warnings.  “The district court determined that there was no material misrepresentation by Grindr because the allegedly misleading statements identified in the Amended Complaint – Grindr’s Terms of Service and its ‘community values page’ – do not represent that Grindr will remove illicit content or take action against users who provide such content,” wrote the court of appeals, “and the Terms of Service specifically disclaim any obligation or responsibility to monitor user content.”

The court said that even if it assumed that Herrick reasonably relied on assurances when he created his own Grindr account in 2011, “his claim would fail for lack of causation.” That’s because after he met his ex-boyfriend in 2015, he deactivated his Grindr account, long before the harassment following their breakup occurred.  “Herrick therefore could have suffered the exact same harassment if he had never seen the Terms of Service or created a Grindr account,” wrote the court, “so his injury is not a direct and proximate result of his reliance on (alleged) misrepresentations.”

Furthermore, Grindr’s Terms of Service were full of disclaimers for any responsibility for what users of the service posted there, which makes any reliance claim not credible.

Ultimately, said the court, quoting from a decision by the San-Francisco-based 9th Circuit Court of Appeals, under Section 230 an interactive computer service “will not be held responsible unless it assisted in the development of what made the content unlawful” and cannot be held liable for providing “neutral assistance” in the form of tools and functionality available equally to bad actors and the app’s intended users.”

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Supreme Court Takes a Pass on Hawaii B&B Discrimination Case

The U.S. Supreme Court announced on March 18 that it will not review a decision by Hawaii’s Intermediate Court of Appeals, which ruled in February 2018 that a small bed & breakfast operating in a private home in the Mariner’s Ridge section of Hawai’i Kai, violated Hawaii’s civil rights law by denying accommodations to an unmarried lesbian couple who were planning a trip to Hawaii to visit a friend.  Hawaii’s civil rights law forbids businesses that are “public accommodations” from discriminating in providing their services based on the sexual orientation of customers.  Cervelli v. Aloha Bed & Breakfast, 415 P.3d 919 (Int. Ct. App. Haw. 2018), cert. denied by Hawaii S. Ct., 2018 WL 3358586 (July 10, 2018), cert. denied, No. 18-451, 2019 WL 1231949 (U.S. Sup. Ct., March 18, 2019).

The key issues raised in the case were whether such an operation is covered by the public accommodations law, and whether the owner, Phyllis Young, who lives there and operates it personally, could successfully raise constitutional claims against being required to accommodate a lesbian couple in her home.

Young operates “Aloha B&B” out of her four-bedroom house, and has averaged between one hundred and two hundred customers a year.  She advertises on her own website and some third-party websites.  Diane Cervelli and Taeko Bufford, a “committed” lesbian couple, emailed to inquire about renting a room for their vacation trip.  Young immediately responded by email that a room was available and explained how to make a reservation.  Cervelli phoned two weeks later to book the room.  As Young was taking down her information, Cervelli mentioned that she would be accompanied by another woman, and Young asked whether they were lesbians.  When Cervelli said “Yes,” Young responded, “We’re strong Christians.  I’m very uncomfortable in accepting the reservation from you.” Young refused the reservation and hung up on Cervelli.

Bufford then called and attempted to reserve the room, but again Young refused.  Bufford asked her whether it was because she and Cervelli were lesbians, and Young said “Yes.”  Young referred to her religious beliefs as the reason she was refusing the reservation.  “Apart from Plaintiff’s sexual orientation,” wrote Judge Craig Nakamura for the court of appeals, “there was no other reason for Young’s refusal to accept Plaintiffs’ request for a room.”

The women filed a discrimination claim with the Hawaii Civil Rights Commission, which concluded that they had a legitimate case.  Then Cervelli and Bufford filed a lawsuit against Aloha B&B in the state circuit court, represented by Lambda Legal with local attorneys from Honolulu, and the Civil Rights Commission intervened in the lawsuit as a co-plaintiff.  Attorneys from Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, joined with local attorneys to defend the B&B.

Judge Edwin C. Nacino of the circuit court easily rejected the B&B’s argument that it was not a public accommodation, but rather a landlord that would not be covered by this law.  The law on discrimination in real estate transactions prohibits sexual orientation discrimination in residential rentals, but doesn’t apply to facilities with four or fewer units.  While the B&B has only four bedrooms, the evidence of 100-200 rentals per year made clear that Young’s business came within the “public accommodations” definition.  Young admitted that she only rented rooms for short stays, so this was a transient rather than a residential facility.

Young claimed that requiring her to accommodate the lesbian couple in her home violated her constitutional right to privacy, freedom of intimate association and free exercise of religion.  The circuit court rejected these defenses, and awarded summary judgment to the plaintiffs on the issues of liability and injunctive relief.  Since the defendant was planning to appeal, the issue of damages was put on hold pending a final decision on the case.

The appeals court affirmed the trial judge on all points.  Judge Nakamura wrote that “to the extent that Young has chosen to operate her bed and breakfast business from her home, she has voluntarily given up the right to be left alone,” thus rejecting her privacy claim.  Opening up her residence to 100-200 paying guests a year is inconsistent with such a privacy claim.  Furthermore, although Young lives there, the extent of commercial activity means that “it is no longer a purely private home.”  And, furthermore, “the State retains the right to regulate activities occurring in a home where others are harmed or likely to be harmed,” and in this case “discriminatory conduct caused direct harm to Plaintiffs and threatens to harm other members of the general public.”

The court similarly rejected the intimate association claim, which, said the court, applies to family relationships and other small-group settings.  “The relationship between Aloha B&B and the customers to whom it provides transient lodging is not the type of intimate relationship that is entitled to constitutional protection against a law designed to prohibit discrimination in public accommodations,” said the appeals court.

Finally, the court found Young’s federal constitutional religious freedom claim would be foreclosed by Employment Division v. Smith, 494 U.S. 872 (1990), where the U.S. Supreme Court held that “neutral laws of generally applicability need not be justified by a compelling governmental interest even when they have the incidental effect of burdening a particular religious practice,” wrote Nakamura, summarizing the holding.  Fueled by ADF’s representation, Young tried to argue that the appeals court should impose a stricter test using the Hawaii Constitution’s protection of religious freedom, but the court refused to do so, stating that in its view Hawaii’s civil rights law would survive the most demanding constitutional test in any event.

“Assuming, without deciding, that Aloha B&B established a prima facie case of substantial burden to Young’s exercise of religion, we conclude that the application of [the Hawaii civil rights law] to Aloha B&B’s conduct in this case satisfies the strict scrutiny standard,” wrote Nakamura,” since “Hawaii has a compelling state interest in prohibiting discrimination in public accommodations,” as the legislature has declared “the practice of discrimination because of sexual orientation in public accommodations is against public policy.”  The court concluded that the civil rights law “is narrowly tailored to achieve Hawaii’s compelling interest in prohibiting discrimination in public accommodations,” as the law “responds precisely to the substantive problem which legitimately concerns the State.”

The Hawaii Supreme Court refused to hear an appeal, so Young took the case to the Supreme Court, posing two questions: “Whether holding Mrs. Young liable without fair notice that her actions could be unlawful violates the Fourteenth Amendment’s Due Process Clause, and whether the Commission’s efforts to punish Mrs. Young for exercising her religious beliefs in her own home violate   the First Amendment’s Free Exercise Clause?”

The first question reflected Young’s belief that she was covered by the exemption for rental operations with four or fewer bedrooms, so, as she claimed, when she turned down Cervelli and Bufford she sincerely believed her business was not covered by the civil rights law, and it would be fundamentally unfair to impose liability on her.  The court of appeals had easily rejected this argument, and it is not the kind of argument that the Supreme Court was likely to address as a failure of procedural due process of law.

The second question was intended to tempt members of the Court who have been calling for a reconsideration of the Employment Division v. Smith precedent, which was controversial when decided and actually led to the enactment of the Religious Freedom Restoration Act (RFRA) by Congress and similar laws by many state legislatures.  Prior to that ruling, the Supreme Court had required the government to show a “compelling interest” when laws that burden free exercise of religion were challenged in court.

Employment Division was seen by many as a sharp departure from prior precedents, liberal Supreme Court justices dissented from the Court’s opinion by Justice Scalia, and a broad coalition spanning the political spectrum among religious organizations successfully lobbied Congress to pass RFRA, ultimately reimposing the “strict scrutiny” standard when federal laws impose a substantial burden or religious free exercise.

Despite calls for reconsidering Employment Division, most prominently by Justice Neil Gorsuch in his concurring opinion in Masterpiece Cakeshop last June, this petition evidently did not tempt at least four members of the Court to use this case as a vehicle to expand the religious freedom of business owners to turn down customers whom they found objectionable based on the owners’ religious beliefs. The Court avoided such reconsideration last Term in Masterpiece Cakeshop by deciding that case on a different ground.  Of course, if the Court wants to address these issues directly, they still have pending a petition to review an Oregon state court ruling against a baker who refused to make a wedding cake for a same-sex couple, Klein v. Oregon Bureau of Labor and Industries, 289 Or. App. 507, review denied by Oregon S. Ct., 363 Or. 224 (2018), so we continue to wait for another shoe to drop.

Meanwhile, unless a settlement is negotiated, Young faces a renewed proceeding in the Hawaii circuit court to determine what damages, if any, she will be ordered to pay to Cervelli and Bufford for unlawfully discriminating against them.

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Missouri Supreme Court Revives Sex Discrimination Law Suits by Gay and Transgender Plaintiffs

The Missouri Supreme Court issued a pair of rulings on February 26, reversing circuit court dismissals of sex discrimination lawsuits by gay and transgender plaintiffs.  Lampley v. Missouri Commission on Human Rights, 2019 WL 925557, 2019 Mo. LEXIS 52; R.M.A. v. Blue Springs R-IV School District, 2019 WL 925511, 2019 Mo. LEXIS 54.  In both cases, the court was sharply split, and in neither opinion did the Court hold that sexual orientation or gender identity discrimination claims, as such, may be brought under the state’s Human Rights Law.  However, at least a majority of the seven judges agreed in both cases that being gay or transgender does not bar an individual from making a sex discrimination claim under the statute, which it least allows them to survive a motion to dismiss for failure to state a claim.

The decision is significant because Missouri is a conservative state that has not amended its Human Rights Act to ban discrimination because of sexual orientation or gender identity, and Missouri’s federal courts are in the 8th Circuit, where the federal court of appeals has not yet ruled on a pending appeal posing the question whether the federal Civil Rights Act’s ban on sex discrimination can be interpreted to cover such claims.

The first of the two decisions, Lampley v. Missouri Commission on Human Rights, involves discrimination claims by two employees of the Missouri Department of Social Services Child Support Enforcement Division.  Harold Lampley filed a discrimination charge with the Commission, checking off on the charge form that he was a victim of discrimination because of “sex” and “retaliation.”  A heterosexual co-worker of Lampley, Rene Frost, also filed a charge, claiming she suffered “retaliation” because of her association with Lampley.

In the narrative portion of his charge, Lampley stated that he is a gay man who does not exhibit the stereotypical attributes of how a male should appear and behave, as a result of which he was treated differently from “similarly situated co-workers” who were not gay and who exhibited “stereotypical male or female attributes.”  Lampley claimed he was subjected to harassment at work, and that in retaliation for his complaints, he was “grossly underscored” in a performance evaluation.

In her narrative, Frost described her close friendship with Lampley.  Frost had complained about a performance review, the result of which was publicly announced to her co-workers in a departure from practice, and after which she claimed the employer moved her desk away from Lampley and the other co-workers with whom she collaborated. She was told she and Lampley were not allowed to eat lunch together, as they customarily did.  She also claimed that, unlike other employees, both she and Lampley were docked for pay for the time they met with their union representative about these issues, and that she continued to be subjected to verbal abuse, threats about her performance review, and “other harassing behaviors” as a result of her friendly association with Lampley.

The Commission’s investigator decided that Lampley was really trying to assert a sexual orientation discrimination claim, and that Frost’s claim was really that she was discriminated against for associating with a gay person.  In both cases, the investigator determined that the Act did not cover these charges, and the Commission terminated its proceedings, stating that both claims did not involve a category of discrimination covered by the law. The cases were “administratively closed,” and the Commission did not issue either Lampley or Frost the usual “right to sue” notice that would authorize them to go to court.

Thus stymied, Lampley and Frost filed petitions with the circuit court for administrative review, or, alternatively, for a writ of mandamus – an order from the court to the Commission to issue them right-to-sue notices.  The circuit court granted the Commission’s motion for summary judgment, citing a 2015 Missouri Court of Appeals decision that stated that sexual orientation claims are not covered by the statute.

The Supreme Court judges were divided over how to characterize this case and whether the Supreme Court even had jurisdiction to decide it, finding procedural problems with the Lampley and Frost lawsuits, but ultimately a majority concluded that they could address these appeals on the merits.

As to that, three members of the seven-member court, joining in an opinion by Judge George W. Draper, III, concluded that it was appropriate to follow federal precedents stemming from the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), holding that the denial of a promotion to a female employee who was criticized as being too masculine in her dress and demeanor violated the rule against discrimination because of sex.  The Supreme Court accepted the argument that reliance on sex stereotypes in making personnel decisions was evidence of employment discrimination because of sex.

Turning to this case, Judge Draper wrote that it was wrong for the Commission to drop its investigation and close the case, because Lampley did not allege in his charge that he was a victim of sexual orientation discrimination.  Although he mentioned more than once in his narrative that he is a gay man, his claim was that he was a victim of sex discrimination because he did not exhibit stereotypical attributes of males.  Thus, he was entitled to an investigation of his claim, and similarly Frost was entitled to an investigation of her claim of retaliation against her based on her association with Lampley.  Draper emphasized that sexual orientation discrimination claims, as such, are not covered by the statute.  But he pointed to several opinions by federal courts, interpreting Title VII, that allowed gay plaintiffs to pursue sex discrimination claims using the sex stereotype theory.

Furthermore, wrote Draper, since the statutory time for investigation of a claim had long since expired, the appropriate remedy was for the circuit court to issue a writ of mandamus ordering the Commission to issue right-to-sue notices to Lampley and Frost so they could pursue their discrimination claims in the circuit court.

One member of the Supreme Court concurred, but on a narrower ground.  Judge Paul C. Wilson, who wrote the opinion for a majority of the court in the R.M.A. case, discussed below, wrote that this case “should be analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims covered by the MHRA,” which, he wrote, “they plainly do.”  However, he wrote, “the principal opinion does not stop there.  Instead, it proceeds to opine on whether ‘sex stereotyping,’ as discussed in the Title VII context in Price Waterhouse v. Hopkins, is a type of sex discrimination under the MHRA.”  But, referring to his opinion in R.M.A., Wilson argued that the MHRA “does not provide for ‘types’ of sex discrimination claims.”  Either a claimant is alleging sex discrimination or not.  If he or she is alleging sex discrimination, they are entitled to have their claims investigated and, ultimately, to present them to a court if they can’t be resolved by the Commission.

Judge Wilson would leave to a later stage in the litigation, when the matter is before the circuit court on the merits, the question whether the facts proven by the plaintiff in the lawsuit would amount to sex discrimination in violation of the law.  Thus, he saw the discussion of sex stereotypes as premature at this stage of the litigation.

Wilson agreed with Judge Draper’s opinion that the MHRA does not forbid sexual orientation discrimination as such.  His concurring vote, however, provided Draper with the majority to hold that the circuit court should not have granted summary judgment to the Commission, because Lampley was not claiming sexual orientation discrimination.

Chief Judge Zel Fischer agreed with Draper and Wilson that the state law does not forbid sexual orientation discrimination, but Fischer concluded for procedural reasons that the appeal should be dismissed.  Judge W. Brent Powell, in a separate dissent, while agreeing with Fischer that the court should dismiss the appeal on procedural grounds, said that otherwise the circuit court’s decision should be affirmed because “mandamus cannot be used to control the administrative agency’s executive director’s discretionary determination that Lampley’s and Frost’s complaints alleged discrimination based on sexual orientation rather than sex stereotyping.”  If that decision was reviewed under an “abuse of discretion” standard, wrote Powell, “the executive director did not abuse her discretion in closing Lampley’s and Frost’s complaints because the determination that the complaints alleged discrimination based on sexual orientation rather than sex stereotyping was not unreasonable, arbitrary, or clearly against the logic of the circumstances considering the allegations contained in the complaints.”

The footnotes of the opinions by Draper and Powell battle over how to characterize the narrative portions of the charges filed with the Commission.  Draper emphasizes that both Lampley and Frost claimed to be victims of sex discrimination because of sex stereotyping, while Powell emphasizes that Lampley’s extended narrative, not quoted in full in the plurality opinion, could clearly support a conclusion that he was the victim of sexual orientation discrimination, thus making the Commission’s conclusion rational and not arbitrary.

In the R.M.A. case, the teenage student filed suit claiming that the school’s refusal to let him use boys’ restrooms and locker rooms was discrimination because of sex.  The plaintiff’s claim to the Commission and Complaint in the Circuit Court stated that his “legal sex is male” and that by denying him “access to the boys’ restrooms and locker rooms,” the school discriminated against him in the use of a public accommodation “on the grounds of his sex.”

R.M.A. filed his charge with the Commission in October 2014, and the Commission issued him a right-to sue notice in July 2015.  He filed suit against the school district and board of education in October 2015.  The defendants move to dismiss the complaint on two grounds: that the Act does not cover gender identity discrimination, and that the public schools are not subject to the public accommodations provisions.  The circuit court granted the motion to dismiss in June 2016, “without explanation,” and R.M.A. appealed.

Writing for give members of the court, Judge Wilson, as noted above in his concurring opinion in the Lampley case, asserted that it was unnecessary for the court to deal with the question whether R.M.A. had a valid sex discrimination.  Since it was dealing with an appeal from a motion to dismiss, he wrote, the court should focus on what R.M.A. alleged in his Complaint.  There, he stated that he was legally a male, and that the school’s denial of his access to the boys’ facilities discriminated against him because of his sex.  To Wilson, this was straightforward.  R.M.A. was claiming sex discrimination, and denial of access to school facilities because of his sex.  At this stage of the litigation, that should be enough to survive a motion to dismiss, and it was not necessary to address the question whether gender identity discrimination claims can be brought under the statute, because R.M.A. made no such claim in his Complaint.  Furthermore, Wilson saw no merit to the argument that the school’s restroom and locker room facilities were not subject to the ban on sex discrimination in public accommodations under the MHRA.

One can easily imagine what Judge Powell thought about this.  In his vehement dissent, joined by Chief Judge Fischer, Powell insisted that the term “sex” as used in the Act could not be construed to allow gender identity discrimination claims, and he insisted that this is what R.M.A. was trying to assert.

“The MHRA does not define the word ‘sex,’” wrote Powell.  “When there is no statutory definition, the plain and ordinary meaning of a statutory term can be derived from the dictionary.”  Quoting from Webster’s 3rd New International Dictionary (1993), the word “sex” means “one of the two divisions of [organisms] esp. human beings respectively designated male or female.”  A secondary definition from Webster’s is the “sum of morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination… that is typically manifested as maleness or femaleness.”  And a third definition: “The sphere of interpersonal behavior esp. between male and female,” and the “phenomena of sexual instincts and their manifestations,” and “determining the sex of an organic being.”  Powell characterized these as boiling down to the concept of “biological sex,” asserting: “The MHRA, therefore, prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”

Consequently, Powell concluded, “the petition survives a motion to dismiss only if it alleges that, as a biological female, R.M.A. was deprived of a public accommodation available to biological males.  R.M.A. makes no such allegation,” Powell continued.  “Instead, R.M.A. alleges he is a female who has transitioned to living as a male, and that the Defendants discriminate against him based on his sex by preventing him from using the boys’ restrooms and locker room.  R.M.A. does not allege that, as a biological female, he was barred from any public accommodation afforded to biological males.  Instead, R.M.A.’s allegation of discrimination distills to an acknowledgment that the Defendants excluded him from the boys’ restrooms and locker room because he is biologically female. If, as the principal opinion reasons, the relevant allegation is that R.M.A.’s ‘legal sex’ is male, then the majority will have ignored the crux of the petition while discarding the substance of the MHRA. The logical upshot is that the majority is presumably willing to hold the MHRA prohibits schools from maintaining separate restrooms and locker rooms for male and female students.  The alternative, of course, is to accept all of R.M.A.’s allegations as true, apply the plain language of the MHRA, and hold R.M.A.’s petition fails to state a claim of sex discrimination.”

Powell concluded that the question whether the statute should cover this kind of case was a policy question for the legislature, not the court.  “The General Assembly has spoken, and R.M.A.’s petition fails to state a claim of unlawful sex discrimination under the MHRA,” stated Powell, declaring that the judgment of the circuit court should be affirmed.  To Judge Wilson, speaking for a majority of the court, Judge Powell’s arguments were irrelevant on the motion to dismiss, since R.M.A. had met the minimal pleading requirement of articulating a claim of sex discrimination.

Given the voting dispositions in these two cases, it is difficult to predict the future course of sex discrimination claims by gay and transgender plaintiffs in Missouri.  While they may survive motions to dismiss their claims, and a reluctant Human Rights Commission may be able to conciliate with the parties and obtain settlements in some cases, ultimately the questions posed by Judge Powell will come right back when the cases are litigated on the merits.  Since Judge Draper’s analysis was supported by only a minority of the court, it is uncertain whether his use of the sex stereotype theory would prevail in a ruling on the merits of a gay plaintiff’s sex discrimination claim.  And the limited nature of Judge Wilson’s ruling in R.M.A.’s case gives no hint of how a majority of the court would deal with a transgender student’s claims to restroom and locker room access.  Looming over all these questions is the pending 8th Circuit appeal under Title VII, and the possibility that the U.S. Supreme Court may hear cases next term concerning gay and transgender rights under federal sex discrimination laws.

Lampley and Frost are represented by Jill A. Silverstein, D. Eric Sowers, Ferne P. Wolfe and Joshua M. Pierson of Sowers & Wolf LLC in St. Louis.  R.M.A. is represented by Alexander Edelman and Katherine Myers of Edelman, Lisen & Myers LLP in Kansas City, and Madeline Johnson of the Law Offices of Madeline Johnson in Platte City, Missouri.

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Federal Court Blocks Discharges of Healthy Airmen Living with HIV

U.S. District Judge Leonie M. Brinkema refused to dismiss a lawsuit challenging the Air Force’s refusal to allow healthy Airmen living with HIV to deploy to combat zones and continue serving, and issued a preliminary injunction blocking discharges pending a final ruling on the merits in a pending lawsuit.  Brinkema’s February 15 ruling in Roe v. Shanahan, 2019 U.S. Dist. LEXIS 25419, 2019 WL 643971 (E.D. Va.), found that the plaintiffs – two Airmen living with HIV and OutServe-SLDN, an organization for LGBT servicemembers and veterans representing other service members living with HIV – have “made a strong preliminary showing that the deployment policy applied to asymptomatic HIV-positive servicemenbers cannot withstand rational basis review.”

 

Soon after Donald Trump took office and James Mattis became Secretary of Defense, it became clear that the Pentagon was going to reverse course and systematically dismiss uniformed personnel who were living with HIV, regardless of the state of their health.  Although a literal interpretation of Defense Department regulations would suggest that those who are thriving on anti-retroviral regimens should be able to serve virtually without limitation, the new regime in the Defense Department hierarchy began rendering seemingly inexplicable decisions, determined to discharge highly functioning personnel.  Although this reason was not openly advanced by the defendants or alluded to by the judge, one suspects that the decision may well have been motivated, at least in part, by a desire to avoid the costs of providing expensive medications to the servicemembers involved.

 

The cases of the two plaintiffs, proceeding anonymously as Richard Roe and Victor Voe, well illustrate the bizarre situation.  Both men enlisted in the Air Force during President Barack Obama’s first term, after the “Don’t Ask, Don’t Tell” policy had been repealed.  Both had very successful careers until they were diagnosed as HIV-positive in 2017.  Although both men, complaint with their treatment regimen, have undetectable viral loads and no measurable impairments, their careers have been side-lined and their hopes for promotions and overseas deployments stymied.

 

Both men had been deployed overseas prior to their diagnosis.  The military screens all active-duty personnel periodically for HIV, and will not enlist HIV-positive individuals, so it is clear that both men contracted HIV while in the service.  Despite the strongly positive recommendations of their commanders and colleagues, the Pentagon’s internal review process has rejected their attempts to remain in the service and both were scheduled for discharge.  But Judge Brinkema’s preliminary injunction will keep them in the service while this case plays out, and depending on compliance with her preliminary injunction, these highly trained individuals should be treated as available for overseas deployment.

 

The Defense Department’s motion to dismiss the case focused on three arguments. First, they claimed that the plaintiffs had failed to exhaust administrative remedies because, despite encountering a categorical refusal at multiple levels of internal decision-making, they decided not to appeal once more to the Air Force Board for the Correction of Military Records (AFBCMR), which would be futile under the circumstances.

 

Judge Brinkema rejected defendants’ suggestion that this required dismissal of the lawsuit.  “Roe and Voe did not seek judicial review without having given the Air Force a meaningful opportunity to examine its policies and decisions,” she wrote.  “To the contrary, they presented their claims to a complex, tiered administrative review process – one that involved medical evaluations, written submissions, and formal hearings – culminating in an extensive administrative record and final written decisions by the [Secretary of the Air Force Personnel Council],” which was “acting on the authority delegated by the Secretary of the Air Force.”  The AFBCMR would not have authority to issue a binding recommendation in any event, and its recommendation would go to the very Secretary of the Air Force on whose authority the plaintiffs’ appeals had been denied.

 

Secondly, the Defense Department argued that its personnel decisions based on medical concerns are “altogether immune from judicial scrutiny,” effectively the same argument the government has been making in defense of Trump’s ban on transgender military service.  Judge Brinkema pointed out that military personnel decisions are not wholly free from judicial scrutiny, and that under precedents of the 4th Circuit Court of Appeals binding on her, she found that the factors to be considered tipped in favor of allowing the case to continue, particularly since “at this preliminary stage, [the plaintiffs] have made a strong showing that defendants’ policies are irrational, based on a flawed understanding of HIV epidemiology, and inconsistently applied.”  She also noted that with OutServe-SLDN as a co-plaintiff representing a class of similarly situated HIV-positive personnel facing unjustified discharges, “the far-reaching nature of these claims surely counsels in favor of judicial review.”

 

Finally, the Defense Department argued that the individual plaintiffs lack standing because they have not actually been discharged.  “Defendants’ argument that plaintiffs lack standing is, as is often the case, a matter of characterization,” wrote Brinkema.  “In their view, the Article III injury on which plaintiffs rely is that ‘they have been prevented from continuing to serve in the Air Force.’” Because their terms of enlistment had expired during this dispute, in some sense, the case could be characterized as being about their ability to re-enlist.  But their terms of service had been extended while the lawsuit is pending.  The defendants argued that because there is no guaranteed right to re-enlist, the plaintiffs have suffered no injury if they leave the military at the end of their extensions of service.  However, the judge observed, “Plaintiffs label this argument a ‘Catch-22,’ arguing that Roe’s and Voe’s ‘terms have expired only because Defendants’ illegal policies forced them into the medical discharge process and prevented them from reenlisting.”

 

Furthermore, Brinkema wrote, because their terms of service were extended, a “favorable decision would be likely to remedy their injury” and, furthermore, OutServe, representing numerous HIV-positive service members, continues to have associational standing on behalf of those members who are at various stages of their terms of enlistment.  Thus, she rejected all three arguments and denied the dismissal motion.

 

As to the preliminary injunction motion, expert medical testimony submitted in support of the motion convinced Brinkema that plaintiffs are likely to win their claim on the merits that the defendants’ approach to the issue runs afoul of the 5th Amendment and the Administrative Procedure Act (APA).  Even though, in the context of a challenge to the military policy, she found that it is likely that the case will have to be decided using the lowest level of judicial scrutiny – rational basis review – the way the Air Force is implementing its policies as described in the Complaint would fail to meet even that test.  “At least at this stage,” she wrote, “plaintiffs have made a strong and clear showing that defendants’ policies are irrational, outdated, and unnecessary and their decisions arbitrary, unreasoned, and inconsistent.”

 

In essence, the Defense Department has been proceeding as if treatment for HIV-infection were still mired in the futility of the 1980s, when HIV infection usually led to severe debility and death.  The decision to discharge Roe and Voe was based on their classification as “non-deployable,” which in turn was based on the mischaracterization of their health as presenting unacceptable risks to themselves and others were they deployed overseas.  Under inflexible regulations, people living with HIV cannot be deployed without a “waiver” of the general restriction on deploying personnel overseas who have serious medical conditions, and the record before Judge Brinkema includes a statement by the official in charge of the “waiver” process that they would never issue a waiver for somebody living with HIV.

 

Judge Brinkema’s opinion takes a deep dive into the medical testimony, and concludes that the Air Force’s application of its regulations is inconsistent with the facts.  “To be sure,” she wrote, “HIV remains incurable, and Roe and Voe must take daily medication to ensure that their viral loads remain suppressed.  But that fact does not justify the categorical prohibition at issue here.  Although HIV-positive individuals who suddenly stop antiretroviral treatment are vulnerable to ‘viral rebound,’ appreciable physical effects are not immediate.”  According to the expert testimony in the record, it “often takes weeks for an individual’s viral load to return to clinically significant levels, and even then, the virus enters a period of clinical latency that can last years, often with no symptoms of negative health outcomes.  What is more,” she continued, “plaintiffs have identified several serious medical conditions treated with daily medication that do not subject servicemembers to the same categorical denial of deployability.”

 

She found that “there appears to be no reason why asymptomatic HIV is singled out for treatment so different from that given to other chronic conditions, all of which are subject to worsening upon disruption of daily medication.”  She also noted the latest evidence that those with undetectable viral load “cannot transmit the virus to another,” obviating the Defense Department’s argument that deployed troops must be able to source blood transfusions.  Roe and Voe’s “risk of transmitting HIV during military service remains vanishingly low,” she observed, pointing out that “Defendants have not identified a single recorded case of accidental transmission of HIV on the battlefield, which is unsurprising given the uncontroverted evidence that even without effective treatment, the risk of transmission through non-intimate contact such as blood splash is negligible.”

 

The judge also found that the defendants had totally failed to counter the plaintiffs’ expert medical evidence.  They cited a report to Congress that asserted that “HIV infection has the potential to undermine a Service member’s medical fitness and the readiness of the force,” but she found that this was just a summary of the Defense Department’s policy position: “It contains no evidence, whether anecdotal or otherwise, of the effect of HIV on a servicemember’s medical fitness or the military’s readiness.”

 

“In sum,” wrote Brinkema, “While plaintiffs have presented considerable evidence in support of their arguments, defendants rely on little more than ipse dixit.” Thus, she found, the defendants’ position on deployability was not supported.

 

As to the discharge decisions themselves, the court found the argument that these men were evaluated on a “case by case” basis and found to be non-deployable mandating discharge, to be unsupported as well.  She wrote that “the evidence in this record clearly establishes that HIV seropositivity alone is not inconsistent with ongoing military service, does not seriously jeopardize the health or safety of the servicemember or his companions in the service, and does not impose unreasonable burdens on the military when compared to similar chronic conditions.”  Both men’s commanding officers recommended retention, which even the Secretary of the Air’s Force’s Council recognized in its opinion on their appeals.  But the Council’s decision failed to make an assessment that had any relationship to the individual situations of these men.

 

This, Brinkema found, makes the discharge decisions “contrary to the APA” for two reasons. First, reliance on the nondeployability policy for HIV-positive service members is not based on an individualized assessment, but rather a categorical ban, which “renders the decision to discharge them arbitrary and capricious.”  Due to the lack of any relationship to a legitimate interest of the military, the Council “violated agency policy mandating that HIV status alone is not a permissible ground for separation.  A decision in direct conflict with the agency’s own standards, and one based on a failure to consider key aspects of the problem, cannot stand under the APA.”

 

Further, she found that the other factors relevant to awarding preliminary relief were all present.  The men’s military careers would be irreparably damaged by an unjustified discharge, which would also deprive them of continued coverage of military health care. The Defense Department argued that an improper discharge could be remedied after the fact by an award of damages, but Brinkema strongly rejected the idea.  “Roe and Voe, along with other similarly situated HIV-positive servicemembers, face a particularly heinous brand of discharge, one based on an irrational application of outmoded policies related to a disease surrounding which there is widespread fear, hostility, and misinformation,” she wrote.  “In their cases, the ‘stigma of being removed from active duty and being labeled as unfit for service’ is coupled with the indignity suffered because the reason for their discharges bears no relationship to their ‘ability to perform their jobs.’”

 

Furthermore, the reason for a military discharge can have secondary consequences, forcing the individuals to “real their condition,” thus subjecting them to discrimination in civilian life as well.  “This is precisely the type of harm that back pay or reinstatement cannot remedy and for which status quo-preserving preliminary relief is designed.”  The judge found that the remaining equitable factors also cut in favor of plaintiffs, and especially the public interest.  She found that these men, dedicated to service with excellent records, were rendering valuable public service that would be interrupted or ended if she did not issue the preliminary injunction.

 

Because her analysis of the case focused specifically on the practice of the Air Force, Judge Brinkema did not grant plaintiffs’ request to make her injunction apply to the entire Defense Department, but on the other hand she rejected the government’s request that it apply only to Roe and Voe and not to the other similarly situated Air Force personnel.

 

Lambda Legal joined with OutServe-SLDN to represent the plaintiffs.  Appearing in the district court were cooperating pro bono attorneys from the Washington office of Winston & Strawn LLP, Laura Joy Cooley and Andrew Ryan Sommer.

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Florida Federal Judge Refuses to Enjoin Anti-Conversion Therapy Ordinances

On February 13, U.S. District Judge Robin L. Rosenberg denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts” (SOCE, alsocommonly referred to as “conversion therapy”) to minors.  The refusal of a preliminary injunction extends as well to a similar ordinance enacted by the city of Boca Raton, which is in Palm Beach County.  Judge Rosenberg concluded that the plaintiffs failed to show that they were likely to prevail on their argument that the measures violate their First Amendment free speech rights.  Otto v. City of Boca Raton, 2019 WL 588645, 2019 U.S. Dist. LEXIS 23363 (S.D. Fla.).

Judge Rosenberg appears to be the first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks.  Just weeks ago, a federal magistrate judge in Tampa recommended to the district court there to grant a preliminary injunction against enforcement of Tampa’s ordinance against conversion therapy practitioners in that city while the litigation proceeds. The district court has not yet ruled on that recommendation, and Judge Rosenberg’s extensive and detailed opinion may influence the other district judge to reject the magistrate’s recommendation.

Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the U.S. Supreme Court’s June 26 ruling, in National Instituyte of Family and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018), that a California statute requiring clinics in that state to advise clients about the availability of state-financed abortion services violated the clinics’ First Amendment rights.  In the course of that opinion, Justice Clarence Thomas, writing for the Court, specifically rejected assertions by two federal appeals courts that “professional speech” is entitled to less constitutional protection than other speech, in cases involving challenges to laws against conversion therapy.

Judge Sansone construed the Supreme Court’s ruling to require using the “strict scrutiny” test to evaluate the Tampa ordinance, and concluded that the plaintiffs were likely to prevail on their claim that the ordinance would not survive strict scrutiny, at least regarding the consensual “talk therapy” that the plaintiffs claimed to be providing to their patients.

Without explicitly mentioning Magistrate Sansone’s analysis, Judge Rosenberg rejected it, concluding that the question of the level of judicial review to be provided to these ordinances is “unsettled” at best, and that the cases that Sansone cited and relied upon do not necessarily lead to the conclusion she reached.

Instead, finding that the appropriate level of review of a ban on talk therapy to attempt to change a person’s sexual orientation (or gender identity, for that matter) is “unsettled,” Judge Rosenberg decided to analyze the issue using the three different levels of judicial review of a statute, always keeping in mind that in requesting a preliminary injunction to block a duly-enacted statute while its constitutionality is being litigated, the plaintiffs have a heavy burden to show a substantial likelihood of prevailing on the merits of their claim.

Using the least demanding level of review, “rational basis,” Judge Rosenberg easily rejected the contention that the city or county were acting irrationally or without any justification in passing the ordinances.  She devoted a substantial part of her opinion to summarizing the evidence that was presented to persuade the county and city legislators that they should pass these laws, concluding that a substantial body of professional opinion unanimously rejects the use of conversion therapy, especially on minors, both because of the lack of evidence that talk therapy can change a person’s sexual orientation, and the mounting evidence of its harmful effects.  Furthermore, she noted, minors are not really capable of giving informed consent and are particularly vulnerable to the psychological harm associated with conversion therapy.

Turning to the next level of scrutiny, which has been applied by other courts in evaluating free speech claims against such laws, “heightened scrutiny,” she found that the legislative record here would back up the defendant’s claims of important governmental interests in protecting minors that are advanced by passing these laws.

Turning to the most demanding level of review, “strict scrutiny,” Judge Rosenberg noted that generally content-based governmental actions to restrict speech are subject to this standard, putting the burden on the government to show that it has a compelling interest at stake and that the measure is narrowly tailored to achieve that interest without unnecessarily abridging free speech.  Narrow tailoring means that the governmental body has to have considered whether a narrower prohibition (the “least restrictive alternative”) would suffice to achieve its compelling goal.

Key to her analysis here is that the defendants met the compelling interest test, because protecting minors is an important role for government, especially when it is necessary to protect them from what may be well-meaning but ultimately harmful decisions by their parents.  The issue which she deemed less conclusive was the narrow tailoring part.  The plaintiffs suggested, as plaintiffs had successfully argued to the Tampa magistrate judge, that a ban on aversion therapy or non-consensual therapy would suffice.  Rosenberg cited reasons for doubting this, including the evidence that talk therapy itself may have harmful effects, as well as her reservations, noted above, about whether such therapy practiced on minors is really consensual.

The bottom line for Rosenberg, however, was that the plaintiffs did not meet the bar of showing that strict scrutiny was definitely the appropriate test to apply, or that they had a substantial likelihood of proving at trial that the measures were insufficiently narrowly-tailored.  As a result, they were not entitled to the preliminary injunction.  She reached a similar conclusion analyzing plaintiffs’ claim that the ordinances are an unconstitutional prior restraint on speech or unduly vague.

Most importantly, she took great pains to explain why the Supreme Court’s ruling in the California clinics case does not necessarily mandate that strict scrutiny should be the standard in this case.  For one thing, she pointed out, that case did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals.  The California case involved requiring clinics to provide information that they did not want to be compelled to provide, which is a different story entirely.  “There,” she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informed-consent requirement or tied to a procedure at all.’”

She also noted that Justice Thomas’s opinion did not even specify what the level of judicial review should be in that case.  She pointed to the Supreme Court’s earlier case, Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court considered a state law requiring that doctors make certain “factual disclosures” to patients seeking abortions in an attempt to dissuade them.  In that case, the Court’s opinion said that “the physician’s First Amendment rights” were only “implicated as part of the practice of medicine, subject to reasonable licensing and regulation by the state.”  This suggests that the rational basis test might apply, or at most heightened scrutiny.

Because she concluded that at this preliminary stage it was possible to conclude that plaintiffs had not shown a substantial likelihood of winning under any of the potentially applicable standards of review, Judge Rosenberg denied the preliminary injunction, leaving to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case.  This means that the performance of conversion therapy on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners while the litigation proceeds.

Plaintiffs are represented by Liberty Counsel, the anti-LGBT legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their 1st Amendment challenge to that state’s ban on conversion therapy for minors.

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Liberty Counsel Revives Assault on New Jersey Conversion Therapy Ban

Usually the U.S. Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” people from gay to straight, has seized upon an opening created by a U.S. Supreme Court decision from last June to revive their constitutional attack on New Jersey’s law prohibiting licensed professional counselors from providing such therapy to minors.  On February 11, the organization petitioned the Supreme Court to effectively reopen the case.  King v. Governor of New Jersey & Garden State Equality.

Governor Chris Christie signed the measure into law on August 19, 2013.  Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs.

U.S. District Judge Freda L. Wolfson granted the state’s motion for summary judgment, finding no constitutional violation (see 981 F. Supp. 2d 296), and the plaintiffs fared no better before the U.S. Court of Appeals for the 3rd Circuit, based in Newark, which upheld Judge Wolfson’s ruling on September 11, 2014 (see 767 F. 3d 216).

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech.  As such, she held that the challenge should be rejected as long as the legislature had a rational basis for enacting the law.  She found that the legislative record about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Judge Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech.  But the appeals court unanimously rejected the plaintiffs’ argument that the statute was consequently subject to the strict scrutiny test, under which it would be presumed to be unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation.  As such, the court ruled, the state could prevail under the less demanding “heightened scrutiny” test by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.

Liberty Counsel petitioned the Supreme Court for review.  That petition was denied on May 4, 2015 (see 135 S. Ct. 2048).  The Supreme Court also denied a petition to review a similar decision by the San Francisco-based 9th Circuit Court of Appeals in a case brought by, among others, Dr. David Pickup, in which that court rejected a similar challenge to California’s ban on conversion therapy.  (Dr. Pickup is also a plaintiff in the case challenging a conversion therapy ban in Tampa, Florida, about which we blogged earlier.)  Judge Wolfson relied on the 9th Circuit’s ruling in finding that conversion therapy statutes can be upheld as within the traditional state power to regulate the conduct of licensed professionals.

More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful.  But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361.  NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state.  The Supreme Court agreed with NIFLA that the statute violated the 1st Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.

In defending the statute, California relied on the conversion therapy decisions from the 3rd and 9th Circuits.  This provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.  After summarizing these and other cases, Thomas wrote: “But this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’  This court has ‘been reluctant to mark of new categories of speech for diminished constitutional protection.’”

Thomas went on to write that there were only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’  Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”

Thus, at least by implication, a majority of the Supreme Court ruled last June that states passing conversion therapy bans will have to meet the demanding strict scrutiny test when they are challenged under the 1st Amendment.  Unless, of course, they can show that this is really a regulation of professional conduct with incidental effect on speech, an approach that worked in the 9th Circuit.  Although Thomas’s comments in NIFLA suggest this may be a difficult task, it is not necessarily impossible.

Reacting to the Supreme Court’s NIFLA ruling, Liberty Counsel jumped into action to try to revive its challenge to the New Jersey law.  First, it filed a Motion with the 3rd Circuit Court of Appeals, demanding that it recall the Mandate it had issued to the District Court in 2014 to dismiss the challenge to the statute.  Liberty Counsel argued that the Supreme Court’s ruling had “abrogated” the 3rd Circuit’s decision, thus the 3rd Circuit should acknowledge that its 2014 ruling was erroneous and correct the situation by “recalling” its Mandate.  Although Liberty Counsel does not explicitly state what would come next, presumably this would mean reversing the District Court’s grant of summary judgment to the state and resetting the case for argument under the strict scrutiny test.  The 3rd Circuit denied this Motion without a hearing or a written opinion.

Undaunted, Liberty Counsel then sought rehearing en banc (by the full 3rd Circuit bench), which was also denied, on November 13, 2018.

Liberty Counsel petitioned the Supreme Court on February 11, arguing that the 3rd Circuit “abused its discretion” by refusing to take action based on the Supreme Court’s “abrogation” of the 3rd Circuit’s prior opinion.  Liberty Counsel cites numerous cases in which it claims federal courts of appeals have “recalled” their mandates from lower courts after a Supreme Court decision in a similar case has rejected the reasoning underlying their earlier decision.  Liberty Counsel argues that the current situation is particularly stark because the Supreme Court has not only rejected the reasoning of the earlier case, but has cited and quoted from the earlier decision while doing so.

On the other hand, Justice Thomas did not use the term “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional.  The 9th Circuit’s reasoning in the Pickup case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the 3rd Circuit’s case could be reconsidered under such a standard.  In this case, Liberty Counsel may be following the lead of West Publishing Company, which operates the Westlaw legal research system.  If one finds the 3rd Circuit’s decision in Westlaw, one sees, in bold red above the citation of the case, the phrase “Abrogated by National Institute of Family and Life Advocates v. Becerra, U.S., June 26, 2018” and the characterization “Severe Negative Treatment.”

Liberty Counsel’s petition, a bit disingenuously, assumes this means that the New Jersey law is unconstitutional, but all it really means is that the 3rd Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny test to be in line with the Supreme Court ruling in NIFLA.

In its argument to the Supreme Court, Liberty Counsel contends that failing to grant the petition and to require the 3rd Circuit to “recall” its mandate will have harmful rippling effects throughout the nation.  It points to the steady progression of new state and local laws that have been enacted in reliance on the “incorrect” decisions by the 3rd and 9th Circuits, which it asserts will “chill” the ability of conversion therapy practitioners to “offer” this “cure” to their patients.

In January, U.S. Magistrate Judge Amanda Arnold Sansone relied on the Supreme Court’s NIFLA decision in her report recommending that the U.S. District Court issue a preliminary injunction against the application of the Tampa, Florida, conversion therapy ban to practitioners who provide “talk therapy.”  The complaint filed in federal court in Brooklyn last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments.  And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York raising similar arguments.

Although Liberty Counsel couches its petition as an attempt to have the court settle a dispute among lower courts about the proper way to respond when one of their decisions is substantially undermined in its reasoning by a subsequent Supreme Court ruling in a similar case, it is at heart an attempt to relitigate the question whether conversion therapy practitioners have a 1st Amendment right to ply their trade free of government restrictions.  It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Trump’s appointments have solidified the conservative majority.  And, at that, it is a test of science against homophobia and transphobia.

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