New York Law School

Art Leonard Observations

Passport Denial Violates Transgender Man’s Equal Protection Rights

U.S. District Judge Gloria M. Navarro ruled on November 23 that the State Department violated the 5th Amendment Equal Protection rights of Oliver Bruce Morris, a transgender man, by refusing to issue him a passport identifying him as male unless he could provide a doctor’s certification of clinical treatment for gender transition.  Morris v. Pompeo, 2020 U.S. Dist. LEXIS 219009 (D. Nevada).  Judge Navarro rejected Morris’s claim that the denial violated his due process rights, and abstained from deciding his Administrative Procedure Act claim on the ground that the relief ordered by the court – to process the passport application without requiring the physician’s letter – had mooted that claim.

Morris, who was identified as female at birth but has identified as male for several years, has health insurance but it doesn’t cover gender transition surgery.  He has been receiving hormone treatment, which is covered by his insurance, under the care of a licensed practical nurse.  He is identified as male on his driver’s license, and obtained a legal name change from a Nevada court.

Morris applied for a 10-year passport in October 2018. “On the application’s checkbox for ‘Sex,’” wrote Judge Navarro, “Plaintiff checked the ‘M’ box, indicating male. Plaintiff included three identity documents in his application: a Nevada driver’s license, which indicates his sex is male; an original copy of his birth certificate, which indicates his sex is female; and a court-ordered name change, indicating that he legally changed his name from “Chanesse Olivia Morris” to “Oliver Bruce Morris” on June 27, 2018.”

Evidently the bureaucrats at the State Department were stymied by the inconsistency between the driver’s license, the name-change court order, and the birth certificate, concerning Morris’s gender.  He received a letter asking him to “verify his sex,” wrote Judge Navarro. “The letter explained, ‘[i]n order to issue you a passport card reflecting a sex different from the one on some or all of your citizenship and/or identity evidence, please send us a signed original statement on office letterhead from your attending medical physician.’ The letter enumerated the information Plaintiff’s physician would have to certify under penalty of perjury, including, ‘[l]anguage stating that you have had appropriate clinical treatment for transition to the new sex.”

Now Morris was stymied, since he is not under a physician’s care, which would not be covered by his health insurance for this purpose.  As a person of limited means, he was being assisted on this application be a legal services attorney, who sent a letter on his behalf “explaining he would not provide the requested certification because he could not afford gender transition treatment, and the requirement violated his constitutional rights.”  The State Department sent several “final notices” repeating the request for a physician’s letter before denying the application due to Morris’s failure to “verify” his sex.  Nevada Legal Services attorneys Christena Georgas-Burns and David A. Olshan then filed suit on his behalf.

The complaint claims that the denial of the passport violated Morris’s 5th Amendment Due Process rights, alleging that he has a constitutional right to refuse medical treatment for gender transition, and his Equal Protection rights, arguing that because cisgender people are not required to provide a physician’s verification of their sex in order to get a proper passport, such a requirement cannot be posed to transgender people.   He also alleged that the barriers the State Department has erected in his case are outside the scope of its authority under the Administrative Procedure Act.  The government moved for summary judgment on the APA claim and to dismiss the constitutional claims, and Morris countered with a motion for summary judgment on all his claims.

The court rejected Morris’s Due Process claim, reasoning that the government is not requiring Morris to submit to surgical treatment in order to get a passport, as they would be happy to issue him a passport with a sex designation consistent with his birth certificate.  That sounds a bit nonsensical, since a passport with his male name and picture and a female sex designation would undoubtedly lead to problems should he try to use it as identification, especially in international travel.  Perhaps his Due Process claim would have gotten further by relying on the right to autonomy and self-identification mentioned by the Supreme Court in Lawrence v. Texas, but that theory was not argued on the summary judgment motion by Morris.  Be that as it may, however, the court’s acceptance of his Equal Protection claim renders the loss on the Due Process claim harmless in this context.

As to the Equal Protection claim, Judge Navarro’s ruling on Morris’s summary judgment motion treated his claim as an as-applied claim rather than a facial unconstitutionality claim, because of the particular proof issues in deciding the plaintiff’s summary judgment motion on a claim of discrimination that merits heightened scrutiny.  There is caselaw in the 9th Circuit – specifically, the circuit’s ruling in Karnoski v. Trump, 926 F.3d 1180, 1201 (9th Cir. 2019) – holding that the federal government faces heightened scrutiny when it is challenged for applying a policy in a way that discriminates against a transgender person.  (In Karnoski, the court was considering President Trump’s transgender military service ban, as concretized by Defense Secretary Jim Mattis in a policy implemented in April 2019.)  Morris’s complaint alleges facts sufficient to sustain a claim of unequal treatment.  Under heightened scrutiny, the government bears the burden on summary judgment of providing an “exceedingly persuasive justification” for imposing its requirement of a physician’s statement to verify a person’s sex and certifying clinical transitional treatment as a prerequisite to getting a passport consistent with the person’s gender identity.

Judge Navarro found that the government’s summary judgment motion was not accompanied by such proof, as it consisted of generalized statements about the importance of the passport as an identity document. “Here,” she wrote, “the Government frames its purported interest too broadly and fails to provide evidence that the interest is exceedingly persuasive. Defendant asserts interests in verifying passport applicants’ identities and ‘[i]ssuing passports that accurately state the bearer’s identity[.]’ There is little doubt that the State Department has an interest in accurately representing the identities of U.S. citizens to foreign nations. However, the only facet of identity at issue here is a passport applicant’s sex or gender. Defendant has provided no explanation, let alone any evidence, of why the State Department has an important interest in verifying a transgender passport applicant’s gender identity, nor a cogent explanation of why the Policy requiring a physician’s certification increases the accuracy of issued passports. Assuming, arguendo, that Defendant has a substantial interest in verifying transgender applicants’ gender identities, he has not shown why a doctor’s certification substantially furthers the interest with respect to transgender applicants given that not all transgender persons receive or require physician treatment.”

In other words, the court implicitly accepts the plaintiff’s argument that one’s gender identity and appropriate sex designation on a passport is not an artifact of genitalia.  One can be a transgender person and entitled to recognition as such without undergoing gender confirmation surgery.  The requirement for a physician to certify “clinical” treatment for transition is not supported by an “exceedingly persuasive” explanation here.

“Given that Plaintiff has prevailed on his equal protection claim,” wrote Judge Navarro, “the Court orders Defendant to review Plaintiff’s passport application without requiring a physician’s certification of Plaintiff’s gender. If Plaintiff’s application is otherwise sufficient under the relevant State Department regulations, Defendant shall issue Plaintiff a 10-year passport. As the Plaintiff has succeeded on his as-applied challenge, the Court declines to address whether the Policy is facially unconstitutional.”  And, as noted above, having provided Morris exactly what he is seeking under his constitutional claim, the court found it unnecessary to rule on the merits of his APA claim.

Thus, the government’s motion to dismiss the constitutional claims was granted as to the Due Process claim and denied as to the Equal Protection claim, and the Plaintiff’s motion for summary judgment was granted as to the Equal Protection claim and denied as to the Due Process claim, while the APA claim was dismissed as moot.

Judge Navarro was appointed to the district court by President Barack Obama in 2010.

Legal Issues | Tagged , , , , , , , , , , , , , , , , , , | Comment

Supreme Court May Address Parental Presumption for Children of Married Lesbians This Term

Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality.  This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.

When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017.   The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority.  Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment.  By the time the Court was to hold its conference on  the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.

Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10.  On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.

An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant.  Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father.  In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.

With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11.  Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review.  If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.

Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis.  Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.

Legal Issues | Tagged , , , , , , , , , , , , , , , , , , , | Comment

States Take Differing Stances on Parental Status of Same-Sex Partners and Spouses

Legal observers have been predicting that the Supreme Court will rule in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment of the U.S. Constitution and to have such marriages recognized by every state, but such a ruling will not necessarily settle all the issues of parental rights of same-sex couples that continue to divide the courts. Litigation in four jurisdictions demonstrates the continuing problem of sorting out such rights.

The Massachusetts Supreme Judicial Court ruled on May 7 in Adoption of a Minor, 2015 Mass. LEXIS 248, 2015 WL 1095242, that the traditional presumption that a child born to a married woman is the legal child of her spouse applies to a lesbian couple, so they need not provide formal notice to their sperm donor that they are seeking a joint adoption in order to avoid problems if they travel or relocate outside Massachusetts. But on May 20, the New York 2nd Department Appellate Division, in Brooklyn, ruled in Paczkowski v. Paczkowski, 2015 N.Y. Slip Op. 04325, 2015 WL 2386457, that the parental presumption does not apply to a lesbian couple, affirming a Nassau County family court ruling that the non-biological mother has no standing to seek a joint custody order for the child born to her same-sex partner. In Oregon, the Court of Appeals ruled on May 13 in In re Domestic Partnership of Madrone, 2015 Ore. App. LEXIS 577, 2015 WL 2248221, that the question whether the former registered domestic partner of a birth mother should be considered the legal parent of the child turned on whether the women would have married had that option been available when the child was born, and in Wisconsin, Lambda Legal filed suit, also on May 13, in Torres v. Rhoades, Case No. 15-cv-288 (U.S. Dist. Ct., W.D. Wis.), on behalf of a married lesbian couple denied the benefit of the marital presumption by state officials who have thus far refused to list both women as parents on their child’s birth certificate.

The cases each present somewhat different facts, but all of them implicate the question whether some form of the parental presumption should apply when children are born to a lesbian couple as a result of donor insemination. The parental presumption, whether adopted as a judicial rule or through legislation, has differed in its strength from state to state, but has generally been applied by courts and government officials to ensure that a child born to a married woman not be deemed “illegitimate” and be entitled to the support of the biological mother’s spouse, and the presumption took on particular significance when married different-sex couples began to resort to donor insemination to deal with problems of male infertility, raising questions about the legal rights and responsibilities of the husbands.

In the Massachusetts case, petitioners J.S. and V.K., a married lesbian couple, filed a joint petition to adopt their son Nicholas who was born to J.S. in 2014, having been conceived through in vitro fertilization using a known sperm donor. The women were married when Nicholas was born, and both are listed as parents on his birth certificate. According to the opinion for the Supreme Judicial Court by Justice Fernande R.V. Duffly, the women “sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth or in the event of their relocation to a State where same-sex marriage is not recognized.” They sought to proceed with the adoption without given notice to the sperm donor, contending that since he was not a legal parent of Nicholas, no notice was required.

The family court judge denied their motion to dispense with the notice, certifying the question whether notice to a known biological father was required to the state appeals court. The Supreme Judicial Court transferred the case directly to its docket, and concluded that such notice was not required.
Justice Duffly made clear that the parental presumption applied in this case. “As to a child of a marriage who is conceived via artificial insemination or IVF, as here,” wrote Duffly, “[the statute] by its nature, contemplates that a third party must provide genetic material for the child’s conception. Nonetheless, as is consistent with our paternity statutes and long-standing presumption of the legitimacy of marital children, [the statute] confers legal parentage only upon the mother’s consenting spouse, not the sperm donor. It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.” While acknowledging that there are contexts in which a sperm donor might assert claims to parentage, they did not apply in this case, where the sperm donor was not seeking any parental standing. Thus, the court concluded, since the adoption statute “does not require the lawful parents of a child to give notice of the petition for adoption to a known sperm donor, we answer the reported question, ‘No.’ The order denying the petitioners’ motion to proceed with the adoption without further notice is reversed.”

The contrary ruling by the New York Appellate Division provides little rational explanation. As reported last summer, the case of Jann P. v. Jamie P. produced a startling ruling from Nassau County Family Court Judge Edmund M. Dane on June 30, 2014, holding that the state’s 2011 Marriage Equality Law, which provides that same-sex and different-sex marriages should be treated the same for all purposes of New York law, did not apply to the parental presumption. The appellate division’s ruling abandoned the trial court’s decision to provide anonymity to the parties, identifying them as Jann and Jamie Paczkowski. They were married when their son was born, but the marriage was a shaky one, and no adoption was undertaken.

When the couple separated and Jann sought a court order allowing her continued contact with her son, Judge Dane insisted that the parental presumption did not apply because it was physically impossible for Jann to have been the child’s biological parent. On May 20, the Appellate Division echoed this conclusion. “Here, the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody,” wrote the court. “Contrary to the petitioner’s contention,” the statutory provisions concerning the parental presumption “do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of a legal status, and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent.”

The court’s wording signals the archaic legal formalism of its approach to this issue. Referring to “the subject child” as if this case did not involve flesh-and-blood people with emotional and psychological attachments – in this case, the bonding of a mother-child relationship extending over many months until Jann’s continued contact with her child was cut off – suggests that the judges were more concerned with legal categories than human relationships, totally at odds with the underlying philosophy of family law, which is to strive to protect the best interest of children in disputes involving their parents. The case cries out for reversal by the Court of Appeals or the legislature.
Surely, when the New York State legislature adopted a Marriage Equality Law that expressly provides that same-sex and different-sex marriages were to be treated as equal in all legal respects, it could not have implicitly intended to create an exception to the parental presumption statute. And that statute is not written in gendered terms.

Section 417 of the Family Court Act states, “A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of the marriage.” Clearly, the intent of the statute is to legitimize the birth of any child born to a married woman by recognizing both spouses as parents of the child. The practice commentary published in the statute book states that this presumption “should apply to same sex as well as heterosexual married couples.

The commentary cites a Monroe County decision from 2014, Wendy G.M. v. Erin G.M., 45 Misc. 3d 594, supporting this conclusion, in which the court ruled that a common law (non-statutory) policy could be applied to recognize the parental status of the biological mother’s wife. Ironically, and inexplicably, the Appellate Division’s decision in the Paczkowski case cites the Wendy G.M. decision without acknowledging that it would support Jann’s standing to seek custody, making it seem as if the two decisions are consistent. One wonders whether the judges whose names are attached to the Paczkowski ruling – Randall T. Eng, L. Priscilla Hall, Jeffrey A. Cohen, and Betsy Barros – bothered to read the Wendy G.M. decision.

The Oregon case is a bit more complicated. Karah and Lorrena, same-sex partners, did not have a legally recognized relationship when Lorrena bore a child through donor insemination, although they entered into a registered domestic partnership after the child was born. They had a commitment ceremony a few years before the child was conceived through donor insemination. There was evidence, however, that Lorrena had expressed ideological opposition to marriage as an institution, and she testified that having the child was originally her idea and she never intended for Karah to be a legal parent of the child. Despite their entering into a domestic partnership after the child was born, it seems that their relationship had deteriorated during Lorrena’s pregnancy, and the circumstances under which the domestic partnership papers were signed is disputed by the parties. On the other hand, they had agreed to adopt a new surname, Madrone, and that name was used for the child’s birth certificate, both women being listed as parents. After the subsequent break-up, Karah sought to establish her parental status, relying on a prior Oregon court decision recognizing parental standing for same-sex partners. Today same-sex partners can marry in Oregon as a result of a court ruling last year, but that option was not available when the child was born.

The court of appeals determined that Karah’s parental standing should turn on whether the women would have married had that option been available to them at the time the child was born. Thus, the court implicitly endorsed the view that if this same-sex couple had been married when the child was born, Karah’s parental status would have been the same as that of a husband who had consented to his wife becoming pregnant through donor insemination, applying the statutory parental presumption.

The Lambda Legal lawsuit in Wisconsin seeks to vindicate the same principle. Marriage equality has been available in Wisconsin since the U.S. Supreme Court announced on October 6, 2014, that it would not review a decision by the U.S. Court of Appeals for the 7th Circuit finding that Wisconsin’s ban on same-sex marriage was unconstitutional. This includes, of course, a requirement that Wisconsin recognize same-sex marriages contracted in other states.

Chelsea and Jessamy became friends in 2001, have lived as partners in a committed relationship since 2010, and were married in 2012 in New York. They live in Dane County, Wisconsin, and initiated the process of having a child together in 2013, using the services of a fertility clinic for Chelsea to conceive through assisted reproductive technology. Their child was born in March 2015 in Madison, and they filled out forms to obtain a birth certificate listing both of them as parents. But when they received the “Notification of Birth Certificate Registration” from the state’s Department of Health Services, Chelsea was listed as the only parent. Their lawyer corresponded with the Department, but the response was that DHS was “evaluating” the situation, and as of the filing of their complaint in the U.S. District Court on May 13, they had not received a correct birth certificate listing both of them as parents.

Their complaint points out that a Wisconsin statute embodies the parental presumption and applies it to situations where a wife becomes pregnant through assisted reproductive technology. Although the statute uses gendered language (referring to the husband and the wife), courts in other states, such as California, have held that such statutes should be construed as gender neutral in the case of same-sex married couples to be consistent with constitutional equality requirements. Their complaint alleges that failure to apply the parental presumption and issue the birth certificate violates the couple’s equal protection and due process rights under the 14th Amendment.

It may be that once the U.S. Supreme Court has issued a marriage equality ruling these parental presumption issues will eventually be sorted out in a consistent manner, but the differing approaches of state officials and courts suggests that this is one issue that will require further work to pin down the practical implications of marriage equality once the basic principle has been established.

Legal Issues | Comment

Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.

Legal Issues | Tagged , , , , , , , , , , , , , , , | Comment

Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993.  Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.”  Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include.  While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation.  Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination.  Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute.  To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex.  Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops.  Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent.  Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003).  Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law.  Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection.  Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service.  Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v.  Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1st Amendment.  The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS.  Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS.  He argued that the Court was enabling viewpoint discrimination by the public law school.  Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act.  In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII.  In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis.  She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states.  (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.)  As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases.  Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling.  The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008.  Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth.  Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions.  The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing.  They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid.  There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14th Amendment as construed by the Supreme Court in Obergefell v. Hodges.  In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple.  Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process.  Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1st Amendment.  In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964.  The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh.  In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion.  The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers.  This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project.  Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years.  Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress.  Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party.  President Trump announced his nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals on September 26.  Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate.  Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them.  Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

Legal Issues | Tagged , , , , , , , , , , , , , , , , , , , , | Comment

Federal Court Orders State Department to Recognize Birthright Citizenship of Child Born Overseas to Married Gay Male Couple Through Gestational Surrogacy

A U.S. District Judge in Georgia issued a ruling on August 27 that a married male couple’s daughter, conceived through donor insemination from a donated egg with an English woman serving as gestational surrogate, should be deemed a natural-born U.S. citizen and entitled to a passport over the objections of the State Department.  The complication in this case is that the spouse whose sperm was used was not a U.S. citizen at the time, although he since has become one through the marriage to his native-born U.S. citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, 2020 WL 5059253, 2020 U.S. Dist. LEXIS 156121 (N.D. Ga., Aug. 27, 2020), presents issues similar to those in Kiviti v. Pompeo, 2020 WL 3268221 (D. Md. June 17, 2020), decided a few months earlier by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14th Amendment of the Constitution, all persons born in the United States are citizens at birth, regardless of the nationality or citizenship status of their parents.  By statute and court decision, the only people born in the U.S. who are not citizens at birth are children born to foreign diplomats stationed in the U.S. or temporary tourist or business visitors.  The citizenship of children born overseas to U.S. citizens is determined by a statute, the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending whether the child’s U.S. citizen parents are married to each other when the child is born.  One provision concerns the overseas children of married U.S. citizens, and a different provision applies if the children are born “out of wedlock.”  As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them.  If the parents are not married, at least one them who is biologically related to the child must be a United States citizen who has resided in the U.S. for at least five years.

In this case, James Mize, a native-born U.S. citizen, and Jonathan Gregg, a British native, met when Gregg moved to the U.S. in 2014 and they subsequently married.  They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate.  They obtained an anonymously donated egg which was fertilized in vitro with Jonathan’s sperm, implanted in their friend, who bore the child in England in 2018.  The local authorities issued a birth certificate recognizing the two men as the parents of the child, identified in court papers as SM-G.  The men had moved to England before the child was conceived.  After she was born, they applied for a U.S. passport and citizenship declaration, but the State Department refused to provide it.  The Department treated the child as if she was born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the United States as a citizen long enough to confer birthright citizenship on her.  Mize is not her biological parent, so the Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have proved to be a recurring issue for gay male couples who go out of the country to have children through surrogacy, as it has generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump Administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their 5th Amendment constitutional rights, violated the INA, and also violated the Administrative Procedure Act.

Meanwhile, however, because of the citizenship status eventually acquired by Gregg through his marriage to Mize, their daughter ultimately acquired naturalized citizenship as the minor child of a naturalized citizen while this case was pending, and is living with the couple in Georgia.  In addition to refusing to change its interpretation of the INA and moving for summary judgment as to that, the State Department also suggested that the case should be dismissed as moot, since the child now has a U.S. passport as a “naturalized” citizen by derivation from her biological father.

U.S. District Judge Michael Brown rejected the mootness argument before turning to the merits of the case in his August 27 opinion.  He said that the dignitary harm suffered by the men in their marriage being deemed irrelevant for the purpose of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Judge Brown pointed out that as a matter of constitutional law, under the Supreme Court’s decisions in Obergefell v. Hodges in 2015 and Pavan v. Smith in 2017, same-sex marriages are supposed to be treated the same as opposite sex marriages for all purposes of law.  They are entitled to the same rights and have the same responsibilities. However, if the INA can be interpreted to treat their daughter as a child “of the marriage,” then the provision concerning the children of married U.S. citizens would apply and there would be no requirement that the child be biologically related to both parents to be a birthright citizen, and the court would not have to address the constitutional issues.

Judge Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way.  If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the 5th Amendment.   Federal courts apply a doctrine of “constitutional avoidance.”  They avoid having to decide questions about the constitutionality of a statute or its interpretation by the government if there is a reasonable way to interpret the statutory language to make the constitutional issues go away.

In this case, Judge Brown, in line with several prior district court decisions, concluded that such an interpretation is possible.  The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that SM-G is a child “of” their marriage in a practical sense.  Thus, the court concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as U.S. parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Judge Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, rendering it unnecessary to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied.  He dismissed the Administrative Procedure Act claim as moot.

The State Department could decide to appeal this ruling, which would be consistent with the Trump Administration’s general tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages.  Unsurprisingly, the Department filed an appeal of the Kiviti decision in the 4th Circuit Court of Appeals on August 14, but in the normal course of things that appeal will probably not be argued for several months and a decision would be unlikely until sometime next year at the earliest.  Meanwhile, the Trump Administration could consistently file an appeal in this case to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, it is possible that the State Department would decide to protect the rights of same-sex couples and their children by revising the Foreign Affairs Manual to adopt an interpretation consistent with  the court’s rulings for the guidance of U.S. consulates and embassies that receive these sorts of applications when children are born to U.S. citizens overseas.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.

Legal Issues | Tagged , , , , , , , , , , , , , , , | Comment

Gavin Grimm Victorious: U.S. Appeals Court Reject’s School Board’s Anti-Trans Restroom Policy

Capping litigation that began in 2015, a three-judge panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit ruled by a vote of 2-1 on August 26 that the Gloucester County (Virginia) School Board violated the statutory and constitutional rights of Gavin Grimm, a transgender boy, when it denied him the use of boys’ restrooms at Gloucester County High School.  Grimm v. Gloucester County School Board, 2020 U.S. App. LEXIS 27234, 2020 Westlaw 5034430.

This may sound like old news, especially since other federal appellate courts, most notably the Philadelphia-based 3rd Circuit, the Chicago-based 7th Circuit, the San Francisco-based 9th Circuit and the Atlanta-based 11th Circuit, have either ruled in favor of the rights of transgender students or rejected arguments against such equal access policies by protesting parents and cisgender students. But Grimm’s victory is particularly delicious because the Trump Administration intervened at a key point in the litigation to switch sides in the case after the Obama Administration had supported Grimm’s original lawsuit.

Grimm, identified as female at birth, claimed his male gender identity by the end of his freshman year, taking on a male name and dressing and grooming as male. Before his sophomore year, he and his mother spoke to the high school principal and secured agreement that he could use boys’ bathrooms, which he did for several weeks without incident.  But as word spread that a transgender boy was using the facilities, parents became alarmed and deluged the school board with protests, leading to two stormy public meetings and a vote that transgender students in the district (of which Grimm was then the only known one) were restricted to using a single-occupant restroom in the nurse’s office or restrooms consistent with their “biological sex,” which the district defined as the sex identified at birth.

After Grimm filed his lawsuit represented by the American Civil Liberties Union (ACLU) seeking a court order to allow him to resume using the boys’ restrooms in his school, the Obama Administration weighed in with a letter to the court siding with Grimm’s argument that the school board’s policy violated Title IX of the Education Amendments of 1972, which bans sex discrimination against students.  Despite this positive letter, the district judge granted the school board’s motion to dismiss the Title IX claim, reserving judgment on Grimm’s alternative claim under the Equal Protection Clause of the 14th Amendment.

Grimm appealed the dismissal.  A three-judge panel of the 4th Circuit then ruled that the district court should have deferred to the Obama Administration’s interpretation of Title IX and not dismissed that claim.  The school board sought review from the U.S. Supreme Court, which granted the petition and scheduled the case for argument in March 2017.  The timing of this argument guaranteed that Grimm would never get to use the boys’ restrooms at the high school before graduating that spring.

After the Trump Administration took office in January 2017, the Justice and Education Departments announced that they were “withdrawing” the Obama Administration’s interpretation of Title IX.  Without taking a formal position on the interpretive question, they criticized the Obama Administration as inadequately reasoned.  But subsequently, Attorney General Jeff Sessions announced his disagreement with the Obama Administration’s interpretation of Title IX and more generally the prior administration’s position that transgender people are protected by all federal laws banning sex discrimination.  In an October 2017 memorandum to all executive agencies, Sessions announced that laws banning sex discrimination apply only narrowly to a claim that an individual suffered discrimination because he was a biological male or she was a biological female, defined by how they were identified at birth.

Since the 4th Circuit had premised its reversal of the dismissal of Grimm’s Title IX claim on its conclusion that the district court should have deferred to the Obama Administration’s interpretation, the basis for that ruling was effectively gone.  The Solicitor General formally notified the Supreme Court, which cancelled the scheduled hearing, vacated the 4th Circuit’s decision, and sent the case back to the District Court without any ruling by the Supreme Court.  In the interim, the district court had responded to the 4th Circuit’s decision by issuing an injunction requiring the school board to let Grimm use the boys’ restrooms, but that was stayed while the appeal was pending in the Supreme Court and within months of the Supreme Court’s action of March 2017, Grimm had graduated from high school.

The Gloucester County School Board than urged the district court to dismiss the case as moot, since Grimm was no longer a student.  Grimm insisted that the case should continue, because he should be entitled to seek damages for the discrimination he suffered and he wanted to be able to use the male facilities if he returned to the school as an alumnus to attend events there.  The mootness battle raged for some time, the complaint was amended to reflect the new reality that Grimm was no longer a student, and a new issue emerged when Grimm requested that the school issue him an appropriate transcript in his male name identifying him as male, since he was stuck in the odd situation of being a boy with a high school transcript identifying him as a girl.  By this time, he had gotten a court order approving his name change and a new birth certificate, but the school persisted in denying him a new transcript, raising frivolous arguments about the validity of the new birth certificate.

Thus repurposed, the case went forward.  Ultimately the district court ruled in Grimm’s favor on both his statutory and constitutional claims, but the school board was not willing to settle the case, appealing again to the 4th Circuit.  The August 26, 2020, ruling is the result.

The ACLU publicized this case heavily from the beginning, winning national media attention and an army of amicus parties filing briefs in support of Grimm’s claim along the away.  On May 26, 2020, the case was argued in the 4th Circuit before a panel of two Obama appointees, Judge Henry Floyd and Judge James A. Wynn, Jr., and an elderly George H.W. Bush appointee, Judge Paul Niemeyer (who had dissented from the original 4th Circuit ruling in this case).  In light of the rulings by other courts of appeals on transgender student cases and the Supreme Court’s decision in Bostock v. Clayton County, Georgia, on June 25, 2020, holding that discrimination because of transgender status is discrimination “because of sex” under Title VII of the Civil Rights Act, the result in this new ruling was foreordained.

Judge Floyd’s opinion for the panel, and Judge Wynn’s concurring opinion, both go deeply into the factual and legal issues in the case, constituting a sweeping endorsement of the right of transgender students to equal treatment in schools that receive federal funding, a prerequisite for coverage under Title IX.  Furthermore, public schools are bound by the Equal Protection Clause, and the court’s ruling on the constitutional claim was just as sweeping.

The court first rejected the school board’s argument that the case was moot, with Grimm having graduated and now being enrolled in college.  Since damages are available for a violation of Title IX, it was irrelevant that Grimm was no longer a student.  He had been barred from using the boys’ restrooms for most of his sophomore and all of his junior and senior years.  Even though the district court granted him only nominal damages, his claim for damages made this a live controversy, as did the school’s continuing refusal to issue him a proper transcript, which the court held was also illegal.

Turning to the merits, Judge Floyd first tackled the Equal Protection claim.  The court rejected the School Board’s argument that there was no discrimination against Grimm because he was not “similarly situated” to cisgender boys.  Judges Floyd and Wynn firmly asserted that Grimm is a boy entitled to be treated as a boy, regardless of his sex as identified at birth.  This judicial endorsement of the reality of gender identity is strongly set forth in both opinions.

Judge Niemeyer’s dissent rests on a Title IX regulation, which Grimm did not challenge, providing that schools could maintain separate single-sex facilities for male and female students, and the judge’s rejection that Grimm is male for purposes of this regulation.  Niemeyer insisted that Title IX only prohibits discrimination because of “biological sex” (a term with the statute does not use).  As far as he was concerned, the school did all that the statute required it to do when it authorized Grimm to use the nurse’s restroom or the girls’ restrooms.  But the majority of the panel accepted Grimm’s argument that the school’s policy subjected him to discriminatory stigma, as well as imposing physical disadvantages.  As a boy, he would not be welcome in the girls’ restroom, and the nurse’s restroom was too far from the classrooms for a break between classes.  As a result, he generally avoided using the restroom at school, leaving to awkward situations and urinary tract infections.

As the case unfolded, the school constructed additional single-user restrooms open to all students regardless of sex and made some modifications to the existing restrooms to increase the privacy of users, but the single-user restrooms were not conveniently located and cisgender students did not use them, reinforcing the stigma Grimm experienced.  Stigma due to discrimination has long been recognized by the federal courts as the basis for a constitutional equal protection claim.

The school’s actions undermined Judge Niemeyer’s argument that the school board policy was justified by the need to protect the privacy of cisgender students, an argument that has been specifically rejected by the 3rd and 9th Circuit cases when they rejected cases brought by parents and cisgender students challenging school policies that allowed transgender students to use appropriate restrooms.  Judge Niemeyer colorfully wrote, “we want to be alone — to have our privacy — when we ‘shit, shower, shave, shampoo, and shine.’”  (Do high school buys shave in the boys’ room as a general practice?)  But the panel smajority was not persuaded that it was necessary to exclude Grimm from the boys’ restrooms to achieve this goal.  After all, the only way Grimm as a transgender boy could relieve himself was by using an enclosed stall, lacking the physical equipment to use a urinal, so he would not be disrobing in front of the other students.  (Let’s be real here.)

Judge Floyd’s opinion did not rely on the Bostock ruling for its constitutional analysis, instead noting that many circuit courts of appeals have accepted the argument that government policies discriminating because of gender identity are subject to heightened scrutiny, and are thus presumptively unconstitutional unless they substantially advance an important state interest.  The majority, contrary to judge Floyd, did not think that excluding Grimm advanced an important state interest, especially after the School Board had altered the restrooms to afford more privacy, an obvious solution to any privacy issue.

Turning to the statutory claim, Judge Floyd pointed out that judicial interpretation of Title IX has always been informed by the Supreme Court’s Title VII rulings on sex discrimination, so the Bostock decision carried heavy precedential weight and the school board’s arguments on the constitutional claim were no more successful on this claim.  The School Board lacked a sufficient justification under Title IX to impose unequal access to school facilities on Grimm.

At this point, the Gloucester County School Board can read the writing on the wall and concede defeat, or it can petition the 4th Circuit for en banc review (review by the full 15-judge bench of the circuit court), or it can seek Supreme Court review a second time.  As to the en banc situation, the 4th Circuit is one of the few remaining federal circuit courts with a majority of Democratic appointees, as several of Bill Clinton’s appointees are still serving as active judges and all six of Obama’s appointees are still serving, leaving a majority of Democratic appointees on the full bench, so seeking en banc review, which requires that a majority of the active judges vote to review the case, would be a long shot.

On the other hand, Justice Neil Gorsuch’s decision for the Supreme Court in Bostock refrained from deciding – since it wasn’t an issue in that case – whether excluding transgender people from restroom facilities violates sex discrimination laws, and this case would provide a vehicle for addressing that issue.  It takes only four votes on the Supreme Court to grant review of a lower court case, so there may be another chapter in the saga of Grimm’s legal battle. It is also possible that the St. Johns County School District in Florida, which lost in the 11th Circuit in a virtually identical ruling, might also seek Supreme Court review, so one way or another, this issue may yet get on to the Court’s Docket this term or next.

ACLU attorney Joshua Block has been representing Grimm throughout the struggle, but the case was argued in May by cooperating attorney David Patrick Corrigan, a litigation specialist at the Richmond firm of Harman Clayton Corrigan & Wellman.  A local Richmond firm represented the School Board, confronting Virginia Attorney General Mark Herring supporting Grimm with an amicus brief.  The overwhelming majority of amicus briefs filed, many by state attorneys general, sided with Grimm.

Legal Issues | Tagged , , , , , , , , , , , , , , , , , , | Comment

Federal Court Awards Significant Damages to Individuals Denied Plastic Surgery Because of HIV Status 

U.S. District Judge Analisa Torres (S.D.N.Y.) ruled on August 5 in United States v. Asare, 2020 U.S. Dist. LEXIS 139864, that three men who were denied plastic surgery by Dr. Emmanuel O. Asare because he believed them to be HIV-positive are entitled to the maximum statutory damages available in such a case under the Americans With Disabilities Act and the New York City Human Rights Law.  The court ordered that Dr. Asare to pay each of the men $125,000 and to pay a fine to the government of $15,000.  The total awarded is $390,000 in damages and penalties.  The court also ordered Dr. Asare to refrain from testing patients for HIV as a prerequisite for denying them services if they test positive.

The U.S. Department of Justice, which enforces Title III of the Americans with Disabilities Act (ADA), forbidding unjustified disability discrimination by public accommodations (including medical practices), filed this lawsuit in 2015, consolidating in one case complaints by three New York men, Mark Milano, J.G., and S.V.  Each of the men had gone to Dr. Asare seeking a procedure to remove unwanted body fat from their chests, a common procedure in which the doctor specialized.  Each of the men was ultimately rejected for the procedure by the doctor when he came to believe (incorrectly in the case of one of them) that they were HIV-positive.

According to the court’s findings after discovery and trial, Dr. Asare’s practice was to have blood drawn for testing some days in advance of the scheduled procedure, to determine whether the patient had any condition that would cause him to deny them treatment.  J.G. and S.V. both testified that they were not asked to consent to HIV testing and were not aware that their blood would be tested for this purpose.  Dr. Asare’s practice was to categorically refuse to perform plastic surgery on HIV-positive people in his clinic.

J.G. had been scheduled for the procedure, but received a call from Dr. Asare’s office asking him to come in to speak with the doctor, who informed him that he had tested positive for HIV and could not receive the procedure.  J.G. had known for years that he was HIV-positive but had not disclosed this on the doctor’s intake questionnaire because he had long kept this information secret from all but a handful of individuals.  He was on anti-retroviral therapy, with an undetectable viral load, and was otherwise healthy.  When he submitted to a blood draw for testing, he was not told that his blood would be tested for HIV.

S.V., a single father of two children who was planning to get married, decided to get the surgical procedure because he was dissatisfied by the appearance of his body.  Due to some sort of mix-up, he had actually reported for the procedure, was sedated and ready for it to be performed, when Dr. Asare informed him that the blood draw a few days earlier showed that he was HIV-positive and the procedure was off.   Asare called a car service for S.V. and sent him home in a sedated state!  When he arrived home, S.V., who was puzzled and shocked by the news, was so woozy that he had to crawl up the stairs to his bedroom and slept for hours.  Not believing that he could possibly be HIV-positive, he went to a hospital a few days later for testing and was informed that he was not HIV-positive.  Judge Torres’ opinion identifies J.G. and Milano as gay men, but does not so specify as to S.V., and does not mention the gender of the person he was planning to marry.

Mark Milano, who was working at the time for an HIV/AIDS organization, also knew that he was HIV-positive, but he did not indicate this on the intake questionnaire because he did not consider the information relevant.  However, in discussing the procedure with Dr. Asare, he asked out of curiosity whether the anti-viral medication he was taking could be responsible for the fatty deposits he wanted to have removed from his chest.  Asare replied that his office was not set up to provide surgery for HIV-positive people and refused to schedule the procedure.  Thus, with Milano things did not get to the stage of blood testing in advance of the procedure.

Under the ADA, a public accommodation, including a medical practice, may not deny services to somebody because of a disability, either actual or perceived, unless the disability renders the person unqualified for the service.  In this case, Judge Torres heard expert testimony that convinced her that being HIV-positive, which is considered a disability under the ADA, was not a disqualification for the procedure Dr. Asare was supposed to provide to these men.  She concluded that the doctor’s explanation that it would be dangerous to mix the anesthetic he used with the anti-retroviral medication that an HIV-positive person would be taking had no medical basis.

Furthermore, the ADA prohibits medical testing that would unjustifiably screen out qualified individuals from receiving a service.  The medical experts testified that all surgeons are supposed to observe “universal precautions” with patients to avoid exposure to any blood-borne infections, regardless of testing.  The emergence of “universal precautions” as the standard of care was actually sparked by the AIDS epidemic.  Before then, it was an open secret in the medical profession that many health care professionals were infected with hepatitis B, a much more easily transmitted infection through blood exposure than HIV, as a result of casual exposure to the blood of patients in health care facilities where universal precautions against such exposure were not enforced.

Thus, Dr. Asare was found to have violated the ADA (and, since his activities were taking place in New York City, the City’s Human Rights Law) in two respects: denying services to people with a disability, and using medical testing to screen out otherwise qualified people with a disability.

Some of these points had been established at earlier stages of the litigation when the focus was on Mr. Milano’s discrimination claim.  The government’s decision to add claims on behalf of J.G. and S.V. prolonged the case, because the issue of testing, which was not raised in Milano’s case, had to be addressed in connection with J.G. and S.V..  The court needed medical expert testimony so that Judge Torres could determine whether requiring the testing violated the statute, a crucial point in framing her remedial order in the case, and haggling about the qualification of an appropriate expert caused significant delay, which is one of the reasons a lawsuit originally filed in 2015 did not come to a final ruling by the trial court until five years later.

The amount of damages was determined by reference to the range of damages that are customarily awarded in Title III cases.  Here the focus was on the psychological and emotional impact on the three men from being denied Dr. Asare’s services under these circumstances.  Each of them credibly testified about severe emotional distress that they suffered, prompting the judge to award the highest amount of damages that she found to be available under the ranges of damages that have been awarded in ADA cases, adding consideration of the range of remedies available under the New York City law as well.

It is possible that Dr. Asare could get the damages cut down on appeal to the 2nd Circuit Court of Appeals, but Judge Torres devoted a substantial part of her opinion to describing the testimony about how each man was affected by being rejected for the procedure, and particularly the bizarre treatment of S.V., who was not HIV-positive and was actually prepped for surgery and sedated by mistake, then sent home in that sedated state without any supervision or follow-up from Dr. Asare’s office to see whether he was all right.  The court’s description of Dr. Asare’s conduct in this case should draw the attention of regulatory authorities on health care practice.

Lawyers from the U.S. Department of Justice prosecuted the case against Dr. Asare, but Mark Milano was allowed by Judge Torres to intervene as a co-plaintiff, and he was represented by Alison Ellis Frick and Matthew D. Brinckerhoff, of Emery Celli Brinckerhoff & Abady, LLP, New York, NY, as well as Armen Hagop Merjian, who has litigated many important HIV-related cases on behalf of Housing Works, Inc., a provider of housing to people living with HIV and an active advocate for their rights.

Legal Issues | Tagged , , , , , , , , , , , , , , , , , , , , , , | Comment

Federal Court Blocks Idaho Law Barring Transgender Women from Athletic Competition

David C. Nye, the Chief U.S. District Judge for Idaho, issued an injunction on August 17 to block enforcement of Idaho’s Fairness in Women’s Sports Act, which Governor Bradley Little had signed into law on March 30.  Hecox v. Little, 2020 U.S. Dist. LEXIS 149442.  Passage of this law made Idaho the first state to enact a statutory ban on transgender women and girls competing in women’s interscholastic sports at all levels.

 

The statute was not enacted in response to any particular incident or crisis involving transgender women in Idaho seeking to compete in women’s sports.  Rather, it appears to have been inspired by news reports about incidents in other states, and in particular a lawsuit filed by some cisgender girls in Connecticut who were upset that the interscholastic sports association in that state had adopted a policy of allowing transgender women to compete as women.

 

Judge Nye pointed out that various professional associations governing women’s interscholastic sports have adopted rules that transgender women would be eligible to compete in women’s sports after having undergone at least one year of hormone therapy to suppress their testosterone levels, based on evidence showing that this would not pose unfair competition to cisgender women.

 

Despite the lack of any sort of emergency, the Idaho legislature actually delayed by a few days joining the nationwide trend of moving legislative activity on-line in the face of the coronavirus pandemic in order to enact two anti-transgender bills: this one, which the Republican State Attorney General warned them would present legal issues under the Constitution and Title IX of the Education Amendments of 1972, and a bill reviving a ban on issuing new birth certificates for transgender individuals, passed in defiance of an injunction issued by the federal court against a similar previous statute.  It was clearly anti-trans month in the Idaho legislature.

 

In addition to excluding transgender women from competing in any organized or team sports activity that was designated for women only, the law empowered anybody to challenge the female sex of a participant, placing the burden on the challenged individual to provide evidence of their female sex according to a definition that in essence considers transgender women to be men.  The law also authorized anybody who claimed to have been harmed by a violation of the statute to sue for damages.

 

The ACLU filed suit on behalf of Lindsay Hecox, transgender girl interested in competing in women’s sports, and a cisgender girl allowed to proceed anonymously as Jane Doe, both challenging the law on constitutional and statutory grounds, and seeking a preliminary injunction to prevent the law from going into effect while the lawsuit plays out.  Jane Doe argued that the law subjected her to the possibility of being challenged as to her sex and subjected to invasive procedures.  The state responded with a motion to dismiss the case, and two cisgender women filed a motion to intervene as co-defendants, claiming that they would be harmed by being subjected to unfair competition from transgender women if the law was blocked.  Of course, the Trump Administrative, which is not a party to litigation involving a state law, filed a statement of interest, supporting Idaho’s right to exclude transgender women from competition.

 

Much of Judge Nye’s decision was taken up with the questions of whether the lawsuit was filed prematurely, whether the plaintiffs had standing to sue, and whether to grant the motion by the cisgender women to intervene.  He dealt with those issues at length, ultimately concluding that the plaintiffs did have a personal stake in the outcome of the case and that the law, as written, was subject to a pre-enforcement legal challenge.  The question of intervention was a closer call, but the judge resolved it in favor of allowing intervention.

 

However, he concluded that it was inappropriate to dismiss the case because this was a clear case of discrimination due to transgender status, and the Supreme Court’s June 15 decision in Bostock v. Clayton County clearly shows that such discrimination is discrimination “because of sex,” and thus subject to “heightened scrutiny” from the court in an Equal Protection challenge.   When a law is subject to heightened scrutiny, it does not enjoy the normal presumption of constitutionality. Rather, the state has a burden of justification, to show that the law substantially advances an important state interest.  Furthermore, as the Supreme Court held years ago in an opinion by Justice Ruth Bader Ginsburg finding the Virginia Military Institute’s men-only admissions policy to be unconstitutional, a law that discriminates because of sex will only survive judicial review if the state has an “exceedingly persuasive” justification for it.

 

In this case, however, such a justification was lacking, as Judge Nye found when he turned to the issue of a preliminary injunction.  Prior to the passage of the law there had been no official state policy restricting transgender women from competing as women, so this injunction was about maintaining the status quo while the lawsuit was under way.  Judge Nye weighed the factors courts are supposed to consider when determining whether to interfere with the legislature’s lawmaking power by blocking enforcement of a new statute, and resolved the issue against the state.

 

The state’s purported justification for the law was to “ensure equality and opportunities” for female athletes, but the court was not persuaded that law would substantially advance that goal.  “Ultimately,” Nye wrote, “the Court must hear testimony from the experts at trial and weigh both their credibility and the extent of the scientific evidence. However, the incredibly small percentage of transgender women athletes in general, coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they have undergone hormone suppression in particular, suggest the Act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.”

 

Taking note of existing rules in scholastic competition that transgender girls could not compete as women until they had undergone a year of testosterone suppression therapy, he could find little rationale for the law.  “In short, the State has not identified a legitimate interest served by the Act that the preexisting rules in Idaho did not already address, other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics,” he concluded. “As such, Lindsay is likely to succeed on the merits of her equal protection claim. Again, at this stage, the Court only discusses the ‘likelihood’ of success based on the information currently in the record. Actual success—or failure—on the merits will be determined at a later stage.”

 

However, he continued, “Instead of ensuring ‘long-term benefits that flow from success in athletic endeavors for women and girls,’ it appears that the Act hinders those benefits by subjecting women and girls to unequal treatment, excluding some from participating in sports at all, incentivizing harassment and exclusionary behavior, and authorizing invasive bodily examinations.  In the absence of any evidence that transgender women threatened equality in sports, girls’ athletic opportunities, or girls’ access to scholarships in Idaho during the ten years such policies were in place, neither Defendants nor the Intervenors would be harmed by returning to this status quo.”

 

Thus, the Idaho legislature is 0 for 2 on its decision to prolong the legislative session in the face of the pandemic, as a different federal judge has already reiterated that the injunction against the prior birth certificate law remains in effect as the lawsuit against the new birth certificate law – which was disingenuously worded to distinguish itself from the earlier one – continues.

 

The plaintiffs are represented by the ACLU.  Judge Nye, who had served as a state court judge for several years, was nominated to the district court by President Obama during his last year in office, 2016, when Mitch McConnell and the Republican majority were refusing to confirm any of Obama’s nominees.  But Nye, a graduate of Brigham Young University’s Law School with a good reputation who earned the ABA’s highest rating, was nominated on the recommendation of Idaho’s two conservative Republican senators, who then asked President Trump to re-nominate him in 2017, and he quickly became Chief Judge when an elderly colleague retired shortly thereafter.  So here is the irony: Just as Trump’s first Supreme Court nominee wrote the opinion protecting transgender people under Title VII, one of his first district court nominees has rejected the position of the Trump Administration’s statement of interest filed in this case.

Legal Issues | Tagged , , , , , , , , , , | Comment