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Federal Court Permanently Enjoins Wisconsin Medicaid from Enforcing State Statutory Exclusion of Coverage for Gender Transition

Posted on: August 26th, 2019 by Art Leonard No Comments

Last year, U.S. District Judge William M. Conley granted a preliminary injunction to several named plaintiffs in a case challenging a 1996 amendment to Wisconsin’s Medicaid statute under which transgender Medicaid participants were denied coverage for their gender transitions.  At that time, the court had concluded that the plaintiffs were likely to win their case on the merits and that delaying their access to gender transition coverage pending a final ruling on the merits would cause them irreparable injury, far outweighing any harm to the state.  The court refused to stay its preliminary injunction pending a possible appeal.  On August 16, Judge Conley issued his final ruling on the merits in the case, having in the interim certified it as a class action extending to all transgender people in the state who relied on Medicaid for their health care coverage, and making the injunction permanent.  The judge ordered the parties to “meet and confer” within 14 days on the scope of relief and final wording of an injunction.  Flack v. Wisconsin Department of Health Services, 2019 U.S. Dist. LEXIS 139388, 2019 WL 3858297 (W.D. Wis., Aug. 16, 2019).

Judge Conley premised his ruling on three sources of law: Section 1557 of the Affordable Care Act, the “Availability and Comparability” provisions of the Medicaid Act, and the Equal Protection Clause of the 14th Amendment.  Providing three independent and equal bases for the ruling makes it eminently defensible should the state decided to seek review at the 7th Circuit.  In this connection, the 7th Circuit has previously found thta government policies that disadvantage transgender people may violate the Equal Protection Clause, and it has adopted an interpretation of Title IX of the Education Amendments of 1972 that accepts the contention that a federal law banning sex discrimination would extend to gender identity discrimination, although this holding might be adversely affected by a Supreme Court ruling under Title VII in a pending case from the 6th Circuit, R.G. & G.R. Harris Funeral Homes v. EEOC, to be argued on October 8.

Judge Conley accepted the plaintiffs’ contention that the standards of care for gender dysphoria published by the World Professional Association of Transgender Health (WPATH), most recently updated in 2011, as supplemented by clinical guidelines on hormone treatment for gender dysphoria published in 2017 by the Endocrine Society, represent a medical consensus recognized by numerous professional health care associations and many, many court decisions, defining the standard of care in the context of any dispute about medically necessary treatment for gender dysphoria.  There is near-unanimity among federal courts at this point that gender dysphoria can be a serious medical condition and that, depending on the symptoms of the individual transgender person, various forms of treatment involved in transition, including hormone therapy and gender confirmation surgery (GCS), may be medically necessary.  The published standards emphasize, as does Judge Conley, that not every person who identifies as transgender experiences gender dysphoria (a “disconnect” between their gender identity and their anatomy), and that there is a range of severity, so not every person with gender dysphoria will necessarily seek GCS.  The Medicaid program’s coverage should depend upon competent medical professionals diagnosing gender dysphoria in the individual case and determining that hormone therapy and or GCS are medically necessary for the individual in question.

A significant problem for the defendants in this case, who include various officials as well as the state’s health services department, was that the legislature, evidently for political reasons, voted in 1996 to forbid the use of state Medicaid funds for gender transition, even though the particular treatments and procedures involved remain covered for a variety of other medical conditions.  For example, somebody suffering a severe hormone deficiency could obtain hormone replacement therapy under Medicaid, and a woman with breast cancer would be covered for a mastectomy, while transgender people would be denied coverage for hormone therapy or mastectomies, even though there was a medical consensus that these treatments were necessary to deal with their gender dysphoria.  The legislature did not undertake any serious study of the expenses of providing such treatment or of the professional medical standards in effect for treating gender dysphoria at that time.  The state tried to defend the statute in this case by coming up with various post hoc arguments that were easily discredited by the court, which observed that the state had failed to present credible expert testimony that there was a sound medical reason to deny the specified procedures to individuals for whom it was medically necessary.

The bulk of Judge Conley’s opinion is devoted to describing the medical evidence in the case, much of it derived from expert testimony provided by the plaintiffs, whose two expert witnesses were experienced medical specialists who had treated hundreds of transgender individuals and who were well-recognized in their field.  The state’s response to this, from the point of view of litigation strategy, was pathetic.  It failed even to offer experts with facially relevant expertise to contest any of the medical evidence.  Indeed, officials of the Wisconsin Medicaid program conceded in their testimony that the WPATH standards describe safe and effective treatments for gender dysphoria in appropriate cases, and there was little dispute that the named plaintiffs qualified for these treatments but were denied coverage for them solely because of the statute.  The court also pointed out that the state had attempted to rely in its arguments on materials that could not have provided a basis for the statute when it was passed, because their publication post-dated it.  In addition, Judge Conley observed that scientific knowledge about gender identity had significantly moved on since the mid-1990s, making the treatments and procedures even safer and more effective today.

The defendants sought to rely on two decision from other circuits: Kosilek v. Spencer, 774 F.3d 63 (1st Cir. en banc, 2014), and Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), but Judge Conley concluded these rulings were not persuasive precedents for this case.

Kosilek culminated long-running litigation and was based on expert testimony presented to the trial court in 2006, predating the current WPATH and Endocrine Society standards.  Also, the en banc 1st Circuit, which was ruling on the question whether GCS was medically necessary in the 8th Amendment context of a state prisoner serving a life sentence for murder (and which, incidentally, was reversing a 3-judge panel decision in the plaintiff’s favor), was heavily influenced by prison security concerns raised by the state that are not relevant in to Medicaid.

As to Gibson, Judge Conley performed a total demolition job on the cock-eyed reasoning of the 5th Circuit panel, whose opinion was written by Trump appointee James Ho.  This was also a prisoner case, the issue being whether it violated the 8th Amendment for the state to maintain a categorical refusal to provide GCS to transgender inmates (unlike in Kosilek, where the court focused on the individual inmate rather than an explicitly categorical treatment ban).  Gibson was a pro se case at the trial level, where the unrepresented inmate was incapable of compiling a state-of-the-art record of expert medical testimony, leaving a factual record bare of the kind of detailed information available to Judge Conley in this case litigated by experience attorneys.  In the absence of such a record, Judge Ho invoked the 1st Circuit’s decision in Kosilek, with its reliance on out-of-date information.  Of course, unlike the present Medicaid case, a case involving a prison setting raises different issues.  On the other hand, Judge Conley’s opinion leaves little doubt that he found the 5th Circuit’s analysis unpersuasive on the key points in common: whether there is a medical consensus that GCS can be medically necessary and that it is a safe and effective treatment.

For the short Affordable Care Act portion of his analysis, Judge Conley refers the reader to his earlier preliminary injunction decision.  As to the Medicaid portion, he details the requirement under Medicaid to cover medically necessary treatments, and furthermore the specific ban on discriminating in coverage decisions depending on the diagnosis of the individual participant.  In the Equal Protection portion of the opinion, he explained that the parties agree that Equal Protection claims by transgender plaintiffs are subject to “some sort of heightened scrutiny,” requiring the state to take on the burden of proving that it has an “exceedingly persuasive” justification for carving out this particular exception from its Medicaid coverage.  The government’s justification, stated now in its defense of the 1996 enactment, was “containing costs and protecting public health in face of uncertainty.”  Conley found neither justification to be sufficient under heightened scrutiny.  For one thing, the state conceded that the legislature made no study prior to passing the statute, either of the costs involved in providing coverage or of the medical facts surrounding gender transition and available treatments.  The only cost projections introduced by the state now were undertaken in response to this litigation, two decades later, and showed that the additional cost to the state’s Medicaid budget on an annual basis amounted to little more than a rounding error.  And, the court observed, there was no credible evidence to support the contention that covering these procedures would endanger public health.

The court also rejected a “spending clause” constitutional argument raised for the first time in support of the state’s opposition to plaintiffs’ summary judgment motion: that it was somehow unfair to the state to impose this “new” burden on it as a matter of federal law when it wasn’t contemplated at the time the state agreed to expand the Medicaid program in response to the Affordable Care Act in 2014.   “Nonsense,” wrote the judge.  Too late, and too bad.

Plaintiffs are represented by attorneys from McNally Peterson, S.C, Milwaukee; Dane & Colfax PLLC, Washington; Abigail Koelzer Coursolle of the National Health Law Program, Los Angeles; and Catherine Anne McKee of the National Health Law Program, Washington.

2nd Circuit Endorses Narrow Interpretation of its Title VII LGBT-Rights Precedent

Posted on: August 16th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, sitting in Manhattan, observed in an opinion issued on August 12 that its historic ruling last year in Zarda v. Altitude Express, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964, does not create a judicial precedent in the 2nd Circuit for purposes of the Constitution’s Equal Protection Clause on the issue of sexual orientation discrimination.

This observation, in an opinion by Circuit Judge Jose A. Cabranes, came in a lawsuit by a woman who was fired early in 2010 from a position as assistant women’s basketball team coach at Binghamton State University in upstate New York after months of rumors that she had a romantic relationship with one of the women on the basketball team.  Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (2nd Cir., Aug. 12, 2019). The plaintiff, Elizabeth Naumovski, who denied that there was any romantic relationship, sued Nicole Scholl, the head coach, and James Norris, the associate athletic director, who made the decision to fire her, claiming a violation of her rights under Title VII and the Equal Protection Clause.  Part of their defense to her constitutional claim was that they enjoyed “qualified immunity” from any personal liability for making the decision to fire her.  District Court Judge David N. Hurd refused to dismiss the claim without discussing the qualified immunity claim, and they appealed.

Under the Supreme Court’s decisions on state actor liability for violating constitutional rights, a government agency or entity such as a public university can only be held liable for its policies, not for discretionary decisions by its management employees.  That is, the doctrine of “respondeat superior,” under which private sector employers can be held liable for the actions of their employees, does not apply in this situation.  Since the University does not have an anti-LGBT employment policy, it cannot be held liable under the Equal Protection Clause, even if a court were to conclude that Ms. Naumovski’s sexual orientation was the reason for her discharge.

However, management employees such as Scholl and Norris can be sued for their decisions violating a public employee’s constitutional rights, if at the time they acted it was “clearly established” in law that the basis for their action was unconstitutional.  Consequently, in ruling on their motion to dismiss the Equal Protection claim against them, Judge Hurd had to determine whether at the time of the discharge in 2010, it was “clearly established,” either by U.S. Supreme Court decisions or 2nd Circuit Court of Appeals decisions, that employees of the state university enjoy constitutional protection from discrimination because of their sexual orientation.   If it was not “clearly established” at that time, Scholl and Norris should be shielded from liability by “qualified immunity,” and their motion for summary judgment should have been granted.

The 2nd Circuit ruled that the motion should have been granted.

“Naumovski’s complaint does not explicitly allege sexual orientation discrimination in its enumeration of her [federal] claims,” wrote Judge Cabranes. “Nevertheless, the District Court appears to have so interpreted her claims.  Indeed, the District Court concluded that ‘Plaintiff has established that she is a member of several protected classes including . . . being perceived as gay.’ We need not decide whether the District Court erred in so construing Naumovski’s complaint.  Even if Naumovski had stated a sexual orientation discrimination claim, Defendants would have qualified immunity from such a claim.”

The court said that any reliance by the district judge on the 2nd Circuit’s decision last year in Zarda v. Altitude Express “in recognizing Naumovski’s arguable sexual orientation discrimination claims” would be erroneous for two reasons.  First, Zarda was a Title VII (statutory) case, not a constitutional case.  Because Altitude Express is a private business, not a government entity, it could not be sued on a constitutional theory.  Furthermore, wrote Cabranes, the Zarda ruling “did not address whether the Constitution prohibits sexual orientation discrimination.  Thus, Zarda is only ‘clearly established law’ for statutory sexual orientation discrimination claims under Title VII.  It does not, however, ‘clearly establish’ constitutional sexual orientation discrimination claims.’”

This is quite disappointing, since the reasoning of Circuit Judge Robert Katzmann’s opinion in the Zarda case should apply equally as a matter of logical reasoning to the question whether sexual orientation discrimination is a subset of sex discrimination, and thus potentially a violation of the Equal Protection Clause.  Elsewhere in his opinion in this case, Judge Cabranes devoted attention to explaining the difference between proof of sex discrimination under Title VII as distinguished from the Equal Protection Clause.  Under Title VII, a defendant can be found to have violated the statute if an employee’s sex was a “motivating factor” in an employment decision, even though it was not the only factor supporting the decision.  By contrast, under the Supreme Court’s approach to Equal Protection, the plaintiff must prove that her sex was the “but-for” cause of the action she is contesting, and the defendant would escape liability if other reasons for its action would provide a valid non-discriminatory reason for the action.

Furthermore, Judge Cabranes pointed out, Zarda was decided in 2018, and Naumovski was discharged in 2010.  “Prior to Zarda,” he wrote, “our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution.  Thus, if anything, the ‘clearly established law’ at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination.  Insofar as the District Court relied on Zarda, therefore, Defendants were surely entitled to qualified immunity.”

The court also pointed out that Naumovski was fired before the Supreme Court had decided U.S. v. Windsor (2013) and Obergefell v. Hodges (2015).  “It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect,” he asserted.  In a footnote, he conceded that in 1996 the Supreme Court had “already begun to scrutinize laws that reflected ‘animosity’ toward gays” when it declared unconstitutional a Colorado constitutional amendment that excluded gay people in that state from protection under state law. “Here, however,” he wrote, “Naumovski has alleged no such class-based animosity or desire to harm.”

Judge Cabranes concluded that even if it is possible that today a public official would not enjoy qualified immunity from constitutional liability for dismissing a public employee because of their sexual orientation, depending how one interprets the current state of affairs in the 2nd Circuit in light of Zarda and nationally in light of Windsor and Obergefell, “at the time of the challenged conduct here such a constitutional prohibition was not yet ‘clearly established.’”

The bottom line in Naumovski’s case is that constitutional claims against Binghamton University and the State University of New York (SUNY) as a whole are dismissed, but several statutory claims against the employers that were not dismissed by Judge Hurd remain in play.  Constitutional claims against Scholl and Norris are now dismissed on grounds of qualified immunity.

Naumovski is represented by A.J. Bosman of Rome, New York.  Scholl and Norris are represented by Margaret Joanne Fowler of Vestal, New York.  The other two judges on the 2nd Circuit panel are Senior Circuit Judges Ralph Winter and Renee Raggi.

Federal Court Rules for Gavin Grimm in Long-Running Virginia Transgender Bathroom Case

Posted on: August 10th, 2019 by Art Leonard No Comments

After more than four years of litigation, there is finally a ruling on the merits in Gavin Grimm’s transgender rights lawsuit against the Gloucester County (Virginia) School Board.  On August 9, U.S. District Judge Arenda L. Wright Allen granted Grimm’s motion for summary judgment, finding that the school district violated his rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s Equal Protection Clause by refusing to let the transgender boy use the boys’ restroom facilities while he was attending Gloucester High School and by refusing to update his official school transcript to conform to the “male” designation on his amended birth certificate.  Grimm v. Gloucester County School Board, 2019 WL 3774118 (E.D. Va., Aug. 9, 2019).

In addition to awarding Grimm a symbolic damage recovery of $1.00, the court issued a permanent injunction requiring the School Board to update Grimm’s official records and provide “legitimate copies of such records” to Grimm by August 19.  Judge Wright Allen also ordered that the Board “shall pay Mr. Grimm’s reasonable costs and attorneys’ fees” in an amount to be determined.  In light of the length and complexity of this lawsuit, the fee award is likely to be substantial.

Grimm began his freshman year at Gloucester High School in 2013 listed as a girl on enrollment papers, consistent with his original birth certificate.  During spring of his freshman year, Grimm told his parents that he was transgender and he began therapy with Dr. Lisa Griffin, a psychologist experienced in transgender issues, who diagnosed gender dysphoria and put the diagnosis in a letter that Grimm later presented to school officials.  Also in 2014, Grimm legally changed his first name to Gavin and began using the mens’ restrooms “in public venues.”  Prior to the beginning of his sophomore year at Gloucester High, he and his mother met with a school guidance counselor, provided a copy of Dr. Griffin’s letter, and requested that Grimm be treated as a boy at school.

They agreed that Grimm would use the restroom in the nurse’s office, but he found it stigmatizing and inconvenient, making him late for classes.  After a few weeks of this, he met with the guidance counselor and sought permission to use the boys’ restrooms.  The request went up to the school’s principal, Nate Collins, who conferred with the Superintendent of Schools, Walter Clemons, “who offered to support Principal Collins’ final decision,” according to testimony in the court record.  Collins then gave Grimm the go-ahead to use the boys’ bathrooms, which he did for seven weeks without any incident.  Grimm had been given permission to complete his phys ed requirement through an on-line course and never used the boys’ locker room at school.

Word that a transgender boy was using the boys’ restrooms got out in the community and stirred up opposition from “adult members of the community,” who contacted school officials to demand that Grimm be barred from using the boys’ rooms.  The School Board devoted two meetings to the issue, finally voting in December 2014 to adopt a formal policy that the use of restroom and locker room facilities “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”

The Board announced that it would construct some single-sex unisex restrooms in the high school, but until then Grimm would have to use the restroom in the nurse’s office.  There eventually were such unisex restrooms, but they were not conveniently located for use between classes and Grimm ended up not using them, finding a requirement to use them as stigmatizing.  Instead, he tried to avoid urinating at school and developed urinary tract infections, as well as suffering psychological trauma.

Meanwhile, at the end of his sophomore year in June 2015, the Virginia Department of Motor Vehicles issued Grimm a state ID card identifying him as male.  When he need brief hospitalization to deal with thoughts of suicide during his junior year, he was admitted to the boys’ ward at Virginia Commonwealth University’s hospital.  In June 2016, he had top surgery, and on September 9, 2016, the Gloucester County Circuit Court ordered the Health Department to issue him a new birth certificate listing him as male, referring to his surgery as “gender reassignment surgery” even though it did not involve genital alteration.  In October 2016, Grimm presented a photocopy of his new birth certificate to the school, but they refused to update his records to reflect male status, and his transcripts still identify him as female.

Grimm, represented by the American Civil Liberties Union (ACLU), filed his lawsuit on June 11, 2015, in the U.S. District Court for the Eastern District of Virginia in Norfolk.  The case was assigned to Senior District Judge Robert G. Doumar, who quickly granted the school district’s motion to dismiss the Title IX claim and reserved judgment on Grimm’s constitutional claim while Grimm appealed the dismissal.  The 4th Circuit Court of Appeals reversed the dismissal, relying on an interpretation of Title IX endorsed by the U.S. Departments of Education and Justice during the Obama Administration, and sent the case back to Judge Doumar, who issued a preliminary injunction on June 23, 2016, requiring the School Board to let Grimm use the boys’ restrooms.  Conveniently for the school board, this order came at the end of the school year, so they had several months of summer break to try to forestall having to let Grimm use the boys’ restroom when school resumed.  Although the 4th Circuit quickly turned down the Board’s motion to stay the injunction, an emergency application to the Supreme Court was granted on August 3, 2016, pending the filing of a petition for review by the School Board and guaranteeing that Grimm was unlikely to be able to use the boys’ restrooms during his senior year if review was granted by the Supreme Court.

Ultimately, the Board did filed its appeal, which was granted with argument set to take place in March 2017.  This timing would virtually guarantee that Grimm would not be able to use the boys’ restrooms at the high school before his graduation, since a case argued in March would not likely result in an opinion being issued until June.  Elections and fate intervened as well, as the new Trump Administration moved to “withdraw” the Obama Administration’s interpretation of Title IX, on which the 4th Circuit had relied.  The Solicitor General advised the Supreme Court of this withdrawal and the Court took the case off the hearing calendar and sent it back to the 4th Circuit, which in turn sent it back to the district court.  Judge Doumar having retired, the case was reassigned to Judge Wright Allen.

Since Grimm had graduated by then, the School Board argued that his request for injunctive relief was moot, as he would no longer be attending Gloucester High School. The ACLU countered that the question of the restroom policy’s lawfulness was not moot, that Grimm as an alumnus would be barred from using the boys’ restroom when he returned to the school for public events, that Grimm was still entitled to a ruling on his claim for damages.  The district court refused to dismiss the case, and discovery went forward.  Although the lawsuit had already been to the 4th Circuit twice and to the Supreme Court, there still had not been any ultimate ruling on the merits of the case at that point.

On May 22, 2018, Judge Wright Allen issued a ruling denying the School Board’s motion to dismiss the case as moot, and she ruled that Grimm had a viable claim of sex discrimination under Title IX.  She also ruled at that time that the constitutional equal protection claim would be decided using “intermediate scrutiny,” which puts to the government the burden to show that its policy substantially advances an important government interest.  On February 19, 2019, the court allowed Grimm to file a new amended complaint adding the issue of the School Board’s refusal to issue a corrected transcript.

On July 23, the court heard arguments on new motions for summary judgment filed by both parties.  These motions were decided by Judge Wright Allen’s August 9 ruling, which also rejected most of the School Board’s objections to various items of evidence offered by Grimm – mainly letters and medical records documenting his gender dysphoria diagnosis and subsequent treatment – which were incorrectly described by the School Board as “expert testimony” that was not admissible through discovery.  The court agreed to the school board’s argument that documents relating to failed settlement discussions should be excluded from consideration.

As to the merits of Grimm’s Title IX claim, the court found that Grimm had been excluded from participation in an education program on the basis of sex when the School Board adopted a policy that would bar him from using the boys’ restrooms at the high school, that the policy harmed Grimm both physically and psychologically, and that because the Gloucester schools receive federal financial assistance, they are subject to Title IX.   Consequently, summary judgment should be granted to Grimm on his Title IX claim.

As to the Equal Protection claim, the court relied on a Supreme Court ruling concerning the exclusion of girls from Virginia Military Institute, in which Justice Ruth Bader Ginsburg wrote that in a sex-discrimination case involving “intermediate scrutiny,” the defendant bears the burden of “demonstrating that its proffered justification for its use of the classification is ‘exceedingly persuasive.’”  In this case, the Board’s justification was “an interest in protecting the privacy rights of students, specifically privacy interests that students have in protecting their unclothed bodies.”

Judge Wright Allen found that the Board had made “no showing that the challenged policy is ‘substantially related’ to protection of student privacy.”  She referred to the lack of any student complaints during the seven-week period that Grimm used the boys’ restrooms during his sophomore year and, she wrote, “The Board’s privacy argument also ignores the practical realities of how transgender individuals use a restroom.”  Common sense prevailed, as the judge quoted another trans bathroom court opinion: “When he goes into a restroom, the transgender student enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves.”

The Board’s witness at the summary judgment hearing, conceding that there was no privacy concern for other students when a transgender student walks into a stall and shuts the door, testified that “privacy concerns are implicated when students use the urinal, use the toilet, or open their pants to tuck in their shirts.  When asked why the expanded stalls and urinal dividers could not fully address those situations,” wrote the judge, “Mr. Andersen responded that he ‘was sure’ the policy also protected privacy interests in other ways, but that he ‘couldn’t think of any other off the top of his head.’  This court is compelled to conclude that the Board’s privacy argument ‘is based upon sheer conjecture and abstraction,’” this time referring to the 7th Circuit ruling in Ash Whitaker’s trans bathroom case.

Judge Wright Allen also pointed out that although trans high school students have not had genital surgery, if they are taking hormones they are developing secondary sex characteristics of the gender with which they identify.  “If exposure to nudity were a real concern,” she wrote, “forcing such a transgender girl to use male restrooms could likely expose boys to viewing physical characteristics of the opposite sex. From this perspective, the Board’s privacy concerns fail to support the policy it implemented.”

The court concluded that the School Board’s policy must be found unconstitutional, pointing out, in addition, that the Board’s refusal to change the gender indication on Grimm’s school records “implicates no privacy concerns.”  The Board had contended that there were some doubts about the validity of the new birth certificate, because the photocopy they were provided was marked “Void.”  This was explained away by testimony from the government official responsible for issuing the documents.  It seems that all but the original would be marked “Void,” and that Grimm has a valid, authentic birth certificate identifying him as male, which the School Board should have honored.

Judge Wright Allen acknowledged the difficult task the School Board faced in deciding how to proceed during the fall of 2014.  She wrote, “The Board undertook the unenviable responsibility of trying to honor expressions of concern advanced by its constituency as it navigated the challenges represented by issues that barely could have been imagined or anticipated a generation ago.  This Court acknowledges the many expressions of concern arising from genuine love for our children and the fierce instinct to protect and raise our children safely in a society that is growing ever more complex.  There can be no doubt that all involved in this case have the best interests of the students at heart.”  However, this was no excuse for imposing a discriminatory and unconstitutional policy on Grimm.

“However well-intentioned some external challenges may have been,” Wright Allen continued, “and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand.  These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives of our children who rely upon us to protect them compassionately and in ways that more perfectly respect the dignity of every person.”

Grimm had long since disclaimed any demand for financial compensation for the injuries he suffered in violation of his statutory and constitutional rights, so the court awarded only nominal (symbolic) damages of $1.00, but it directed that the School Board issue a new, corrected transcript in ten days, and the parties will now haggle about the size of the award of attorney’s fees and costs, which should be substantial.

Judge Arenda L. Wright Allen, nominated to the court by President Barack Obama, was the first female African-American judge to serve in the U.S. District Court for the Eastern District of Virginia after she was unanimously confirmed by the Senate (96-0) in May 2011.  She had previously been the top Federal Public Defender in the Eastern District of Virginia, and was a former Assistant U.S. Attorney and a military judge.  Prior to this ruling, her most noteworthy decision, issued in February 2014, declared Virginia’s ban on same-sex marriage unconstitutional.

 

Unanimous Utah Supreme Court Holds Exclusion of Same-Sex Couples Under Gestational Surrogacy Law is Unconstitutional

Posted on: August 7th, 2019 by Art Leonard No Comments

The Utah Supreme Court ruled on August 1 that a state law authorizing judicial approval of gestational surrogacy contracts was unconstitutional to the extent that it excluded married same-sex couples from being able to enter into an enforceable gestational surrogacy contract.  Finding that the offending provision is “severable” from the rest of the statute, the court sent the case back to a trial court for approval of the surrogacy agreement.  The case is In re Gestational Agreement, 2019 Westlaw 3521540, 2019 UT 40.

The opinion by Chief Justice Matthew B. Durrant refers to the parties by their initials.  N.T.B. and J.G.M., a gay male married couple, wanted to make an enforceable gestational surrogacy contract with D.B. and G.M., a different-sex married couple.  They had the appropriate papers drawn up and submitted them for approval to District Judge Jeffrey C. Wilcox in St. George.

Under Utah’s law governing gestational surrogacy, only married couples can make an enforceable gestational surrogacy contract, and for the contract to be legally valid, a judge must find that it meets a multi-part statutory test.  The intended parents must be a married couple, and the proposed gestational surrogate must be a married woman who has already borne at least one child and whose husband consents to the arrangement.  The statute does not specify that the intended parents must be a different-sex couple, but when this state was enacted in 2005, Utah had a constitutional provision banning same-sex marriages, so clearly the legislature was thinking of different-sex couples when it approved the statute.

In order for the judge to validate the agreement, he or she must find that “medical evidence shows that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child.”  That is, Utah legislators did not want to validate surrogacy agreements where the intended parents wanted to pay somebody to bear their child for reasons of convenience, but only for reasons of medical necessity.

Taking this provision literally, Judge Wilcox reasoned that the statute’s use of the words “mother and her plainly refer to a woman,” so because “neither of the legally married intended parents are women the court must deny their petition.”  The judge rejected the petitioners’ argument that he should apply a gender-neutral interpretation to the statute, or that denying the married gay couple the right to make a valid gestational surrogacy contract was a violation of their constitutional rights.

They appealed the ruling, and the state’s Court of Appeals certified the case to go directly to the Supreme Court.

The Supreme Court faced several issues.  First, since the state was not a party and filed an amicus brief urging the court to interpret the statute to allow this contract to be validated, there was no traditional “case or controversy.”  Thus, the court had to confront the question whether it had jurisdiction over this case.  Chief Justice Durrant devoted a considerable portion of the opinion to that question, finding that in the field of family law there were various circumstances in which courts decide essentially uncontested cases because of statutory requirements for the exercise of judicial judgment, and this case fit easily into that exception to the general requirement that courts confine themselves to resolving disputes between contesting parties.  His opinion resulted in two members of the court writing concurring opinions focused solely on the jurisdiction issue, but the outcome had unanimous support of all the judges.

The second issue for the court was whether it could use a gender-neutral interpretation of the statute to get around the literal requirement found by Judge Wilcox that one of the intended parents must be a woman who is unable to bear a child for medical reasons.

The petitioners relied on a general “rule of construction” in the Utah code that “a word used in one gender includes the other gender.”  Judge Wilcox had acknowledged this, but noted that the same statute provides that the general rules of construction “shall be observed, unless the construction would be: (i) inconsistent with the manifest intent of the Legislature; or (ii) repugnant to the context of the statute.”  Wilcox found this proviso applicable, and so did Chief Justice Durrant.

Certainly, the intent of the legislature when the statute was enacted was to override the general common law rule against enforcement of surrogacy agreements, but only for a narrow range of cases in which traditionally-married couples who were unable for medical reasons to have a child without the assistance of a surrogate could make an enforceable surrogacy agreement subject to judicial oversight to protect the interests of all parties.  A judge had to approve the agreement to ensure that all interests, including those of the surrogate and the resulting child, were protected.

“Because the plain and ordinary meaning of the word ‘mother’ is ‘female parent,’” wrote Durrant, “we are bound, as the district court concluded it was, to read the statute as requiring that one of the intended parents be a female parent.”  He noted that following the state’s and the petitioners’ argument that the gender neutral construction rule should be followed, but this would come within both terms of the proviso: inconsistent with legislative intent and “repugnant” to the context of the statute.  He pointed out that a gender neutral reading could provide results clearly outside of the bounds that the legislature wanted to place on the use of gestational surrogacy.  If the words “intended mother” are read to mean “intended parent” without regard to gender, then a different sex couple could enter into a gestational surrogacy contract by showing that the husband is unable to bear a child.  “Because every opposite-sex couple could make this showing automatically,” wrote Dunnant, observing parenthetically that “every opposite-sex couple contains a male member and obviously a male cannot bear a child,” then this gender-neutral interpretation “would write the intended mother requirement out of the statute.”  Clearly, Dunnant has missed the occasional press reports about transgender men bearing children!

In any event, the court was unwilling to adopt a gender-neutral construction of the statute, leading to the next question faced by the court:  Does the requirement that the one of the intended parents be a woman violate the constitutional rights of the same-sex couple?  Here the court easily and unanimously found that it does under the U.S. Supreme Court’s decisions in Obergefell v. Hodges and Pavan v. Smith.  In the aftermath of the Obergefell decision, issued on June 26, 2015, lower courts had to decide whether Obergefell was a narrow decision, merely requiring that states allow same-sex couples to marry, or a broad decision under which the marriages of same-sex couples must be treated the same as other marriages under state law.

Justice Anthony Kennedy’s explanation in Obergefell of why the right to marry is a “fundamental right” did more than just imply that same-sex marriages had to enjoy equal rights, but some lower courts did not get that message.  The Arkansas Supreme Court, for example, ruled in Pavan v. Smith that the state could refuse to put the names of both women in a married couple on the birth certificate of their child because only one of the women was “biologically related” to the child.  The U.S. Supreme Court reversed.  Since the husband of a woman who gives birth is automatically listed on the birth certificate as a parent of the child, so must be a same-sex spouse, because the 14th Amendment requires that all marriages have equal rights.

Durrant found this clearly applicable to the present case.  The court found that the Utah statutory requirement that validation of a gestational agreement requires that at least one of the intended parents be female “squarely violates Obergefell in that it deprives married same-sex male couples of the ability to obtain a valid gestational agreement – a marital benefit freely provided to opposite-sex couples.  Under the statute, married same-sex male couples are treated differently than married opposite-sex couples.  Because under Obergefell same-sex married couples are constitutionally entitled to the ‘constellation of benefits that the States have linked to marriage,’ we hold the intended mother requirement . . . unconstitutional.”

This brought the court to the last question.  Was the entire surrogacy statute thus rendered unconstitutional, or could the statute be saved be severing the provision concerning the intended mother’s reproductive capacity and enforcing the statute without that provision for applications by same-sex couples?

The court noted that the legislature did not include an express severability provision in the statute, so the court was left to apply the general rule that a statute should be saved from being struck down on constitutional grounds if it was feasible to do so, and the court found it was feasible to do so in this case.  Durrant pointed out that the statute required the district court to make findings on eleven different issues. Subtracting this one left ten other issues, such as whether the consideration paid to a surrogate is “reasonable,” whether the surrogate has had a successful pregnancy in the past, whether a home study shows the intended parents meet the “standard of fitness applicable to adoptive parents” and so forth.  “Striking the intended mother requirement from this list does not reduce the significance of these other required findings,” he wrote.  “The district court should still be required to make findings on each of the additional ten conditions.  Severing the intended mother requirement from the statute does nothing to affect the operability of the remaining portions of the statute.”  Indeed, the court found that severing the intended mother requirement does nothing to “undermine” the purpose of the other provisions intended to protect the surrogate, the intended parents, and the child.

The parties are represented by Edwin S. Wall and Damian E. Davenport of Salt Lake City.  Utah Attorney General Sean D. Reyes, Solicitor General Tyler R. Green, and Assistant Solicitor General Brent A. Burnett submitted an amicus brief encouraging the court to adopt a gender-neutral interpretation of the statute, so as not to require a constitutional ruling.

This opinion is an important contribution to the growing body of cases adopting a broad construction of the precedential power of Obergefell v. Hodges and the Supreme Court’s subsequent decision of Pavan v. Smith.

First Circuit Refuses to Order Reopening of Asylum Proceedings for Lesbian from Uganda

Posted on: July 28th, 2019 by Art Leonard No Comments

The U.S. Court of Appeals for the 1st Circuit denied a petition by a lesbian from Uganda to order the Board of Immigration Appeals (BIA) to reopen her immigration case, finding that nothing she had introduced in support of her second petition for reopening showed that conditions for LGBT people in Uganda had gotten worse since the original proceeding in which she was ordered to be removed back to her home country.  Nantume v. Barr, 2019 WL 3296962, 2019 U.S. App. LEXIS 21952 (July 23, 2019).  Senior Circuit Judge Bruce Selya conceded the “disturbing” evidence concerning the situation of LGBT people in Uganda, but the panel found that this was beside the point on an untimely second motion to reopen, in which the primary issue is whether the petitioner had new evidence to present that conditions were worse than when the BIA originally ruled in her case.

The Petitioner entered the U.S. on a six month visitor’s visa in October 2001, overstayed the visa, and married a male U.S. citizen, attaining the status of lawful permanent resident in March 2004.  But immigration authorities challenged the marriage’s validity, and ultimately proved that it was a sham marriage entered solely for immigration purposes.  The Petitioner was convicted of conspiring to defraud the U.S. and was sentenced to a year in prison, after which removal proceedings were begun.  While in prison, she “met a female prisoner with whom she developed a romantic relationship,” wrote Judge Selya.  “This relationship outlasted the petitioner’s incarceration and led to the petitioner ‘coming out’ as a lesbian.”  During the removal proceedings, she admitted the allegations of the Notice to Appear and conceded removability, as well as conceding that she was not entitled to any relief from removal, and the Immigration Judge (IJ) ordered her removed to Uganda on May 12, 2014.  In other words, her counsel at that time appears not to have tried to overcome the taint of the felony conviction for a sham marriage by asserting a refugee claim based on her new-found sexual orientation.  She did not appeal the IJ’s removal order, it a final agency order.  But, she did not leave.

Apparently, this fiasco led her to find new counsel.   Two months later, as fervent anti-gay propaganda in Uganda inspired the legislature to consider a draconian new anti-gay criminal law, and represented by her new counsel, who were evidently more tuned-in to the LGBT issue than her prior counsel, she filed a timely motion to reopen her removal proceedings, seeking to apply for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  She sought a stay of the outstanding removal order, predicating these filings on her recent identification as a lesbian and thus a member of a social class recognized under U.S. immigration law for purposes of refugee status, depending of course on a finding that members of the LGBT community are subject to persecution in their home country.

Since the Petitioner had never been “out” as a lesbian in Uganda, she had no incident of actual persecution of herself to present, so her case for re-opening relied on two “new” facts: that she now identified as an “out” lesbian, and that Uganda had passed a new anti-gay law, in support of her contention that conditions for LGBT people in Uganda were worsening.  The problem she had was that these were not really “new” facts with respect to her original removal hearing.  She had already identified as a lesbian at that time, and the new law was actually signed by the President of Uganda while her original removal hearing was in progress.  Her original counsel, perhaps oblivious to this issue, had made nothing of them.  The court’s opinion says nothing about this, but it strikes us as possible that she had not told her original counsel that she was a lesbian, but apparently her new representatives made a valiant attempt to repair that problem.

On August 11, 2014, the IJ denied her petition to reopen the case, and the BIA rejected her appeal of this ruling on February 6, 2015.  She did not seek judicial review at that time.  Although she was thus still subject to the original removal order, she remained in the U.S.  In the meantime, the 2014 anti-gay law in Uganda was declared to have been invalidly enacted in a ruling bythat nation’s highest court. A new law was passed in 2016, denying recognized non-governmental organization status to any groups formed to work for LGBT rights.  On June 25, 2018, the Petitioner filed a second motion to reopen her removal case, which was untimely under the rules governing these proceedings, but she attached “a trove of documents (including country conditions reports, family correspondence, photographs, and a psychiatric assessment) aimed in part at showing changed circumstances.”  The BIA rejected this motion as well, finding that it was procedurally barred, and, besides, that her new evidence had “failed to establish a material change in Ugandan country conditions.”  This time, she petitioned for judicial review.  While her petition was pending at the 1st Circuit, she was finally removed from the U.S. back to Uganda, but the court stated in a footnote, “Her removal does not affect the justiciability of her petition for review.”

The issue for the court was two-fold.  First, because this petition was untimely under the rules governing this process, did she qualify for an exception?  “To fit within the narrow confines of the exception applicable to untimely motions to reopen, an alien must breach two barriers,” wrote Judge Selya.  “First, the alien must show that the change in country conditions is material and must support that showing by evidence that was either unavailable or undiscoverable at the time of her merits hearing.”  (Note that the merits hearing took place beginning on February 20, 2014, and consumed several hearing days extending over a period of weeks into May 2014.)  “Second, the alien must show prima facie eligibility for the substantive relief that she seeks (here, asylum, withholding of removal, and CAT protection”), and she bears the burden of proof as to both.

The court decided that since the Petitioner had not met the burden of showing materially changed circumstances, her petition must be denied, regardless whether she could have shown prima facie eligibility for substantive relief.  Indeed, the problem she faced was apparently insurmountable, because the situation for “out” LGBT people is, all concede, dire, but it has been so throughout the period covered by the Petitioner’s removal proceedings, and she missed the boat on this issue by not presenting the necessary evidence in her original proceeding.  Her attempt to show that things had gotten worse “is belied by the record,” wrote Judge Selya, “which makes manifest that Uganda has historically and persistently discriminated against individuals who engage in same-sex sexual activity. . .  To be sure, the submitted materials reflect an ongoing animus toward LGBT individuals in Uganda (manifested through harassment, violence, and the like).  The record contains nothing, however, that fairly suggests a deepening of this animus over the relevant period.  Instead, it discloses that the criminalization of same-sex sexual activity has ‘remained’ official policy [since colonial times] . . .  Put bluntly, the situation is dreadful – but it has been dreadful throughout the relevant period.  The petitioner’s submissions fail to show that the level of hostility, persecution, or other mistreatment intensified between May of 2014 (when the merits hearing concluded) and June of 2018 (when the petitioner’s second motion to reopen was filed).”

The court found that legislative activity in Uganda in 2014 and 2016 cited by the Petitioner did not change this conclusion.  She could have brought up the 2014 sodomy law amendments during her initial hearing, but evidently did not, and the BIA had found that the more recent enactment did not materially change the treatment of LGBT individuals in Uganda.  In light of these findings, the court concluded that the BIA had acted within its discretion in finding that Petitioner’s evidence did not show a material adverse change of conditions in Uganda during the relevant time, thus an essential ground for reopening the case was not met.

“Let us be perfectly clear,” wrote Selya.  “We have no illusions about what is happening in Uganda with respect to LGBT individuals,” citing to Sexual Minorities Uganda v. Lively, 899 F. 3d 24 (1st Cir. 2018), reviewing an appeal in a case arising out of a ‘vicious and frightening campaign of repression against LGBTI persons in Uganda’ as found by the district court in that case.  “We regard the views of the Ugandan government toward members of the LGBT community as benighted, and we know that the petitioner’s life in her homeland may prove trying.  But the conditions that confront LGBT individuals in Uganda, though disturbing, are not new.  Those conditions have persisted for decades, and they have not materially changed in the relatively brief interval between the conclusion of the petitioner’s 2014 merits hearing and the filing of her 2018 motion to reopen.”

The court pointed out that the Petitioner has one more possible route: to petition the Attorney General to parole her into the United States for “urgent humanitarian reasons.”  Selya pointed out that the courts “are bound by a more rigid framework of legal rules and cannot reconstruct those rules to achieve particular results.  It follows that our antipathy for certain of the norms that prevail in Uganda, without more, does not authorize us to bar the removal of a Ugandan national to that country.”  Dickensian, no?

The three-judge panel of the 1st Circuit that decided this case is composed entirely of Republican appointees.  Senior Circuit Judge Selya and Circuit Judge Torruella were appointed by Ronald Reagan, and Chief Circuit Judge Howard was appointed by George W. Bush.

The Petitioner is represented by Melanie Shapiro, with Harvey Kaplan and the Harvard Law School Immigration and Refugee Clinic at Greater Boston Legal Services on the brief.  Perhaps they can quickly get up an application to Attorney General Barr for discretionary relief, but the Petitioner’s past conviction of a serious felony (fraud on the U.S. regarding her sham marriage) makes her case more difficult, due to the moral turpitude standards applied in withholding cases.

Transgender Teen’s Mother Asks Supreme Court to Recognize a Parent’s Due Process to Control Her Child’s Life

Posted on: July 27th, 2019 by Art Leonard No Comments

Anmarie Calgaro is one angy mama!  Despite being defeated at every turn in the lower courts, and despite her child having reached age 18 and thus no longer being subject to her parental control as a matter of law, she is asking the U.S. Supreme Court to reverse decisions by the U.S. 8th Circuit Court of Appeals and the U.S. District Court for Minnesota, and to establish that governmental and private entities should not be allowed to shut out a parent from continuing to control her transgender teen, even after the teen has left home and is living on her own.

 

The decisions in the lower courts are Calgaro v. St. Louis County, 2017 WL 2269500 (D. Minn. 2017), affirmed, 919 F. 3d 1054 (8th Cir. 2019), petition for certiorari filed, July 26, 2019, No. 19-127.  The Respondents have a filing deadline of August 26.

 

Calgaro is suing St. Louis County, Minnesota; St. Louis County Public Health and Human Service’s former director, Linnea Mirsch; Fairview Health Services and Park Nicollet Health Services, non-governmental health care providers; St. Louis County School District; Principal Michael Johnson of the Cherry School in that district; and, not least, her child, identified in court papers as E.J.K.

 

The Petition filed with the Supreme Court in Calgaro v. St. Louis County, No. 19-127 (docketed July 26, 2019), presents a factual narrative that differs a bit from that provided by the lower court opinions.  The Petition refers to E.J.K. by male pronouns, despite E.J.K.’s female gender identity, and tells the story from the perspective of a mother confronting misbehaving adults who were wrongfully treating her child, male from her perspective, as if he was emancipated and could make decisions on his own without notice to or approval by his mother.  She was particularly concerned that these adults (governmental and non-governmental) were assisting her child in gender transition without giving her an opportunity to object.

 

The gist of the story is that the teen, identified as male at birth but who came to identify as female, was living with her mother and younger siblings, but decided at age 15 to move out to live with her biological father for reasons not articulated by the courts or the Petition, but one can imagine them.  (From the court’s reference to “biological father,” one hypothesizes that E.J.K.’s biological parents were not married to each other.)  She stayed with her father only briefly, then staying with various family and friends, refusing to move back in with Calgaro, who claims that she has always been willing to provide a home for E.J.K.

 

After leaving her mother’s home, E.J.K. consulted a lawyer at Mid-Minnesota Legal Aid.  The lawyer “provided her with a letter that concluded she was legally emancipated under Minnesota law,” wrote District Judge Paul A. Magnuson.  E.J.K. never sought or obtained a court order declaring her to be emancipated.  But this letter, which by itself has no legal effect, was used effectively by E.J.K. to get government financial assistance payments that ordinarily would not be available to a minor who is not emancipated, to persuade two health care institutions to provide her with treatment in support of her gender transition, and to persuade her high school principal to recognize her gender identity and to treat her as emancipated and to refuse to deal with her mother’s requests for information and input about E.J.K.’s educational decisions.  All of these steps were achieved by E.J.K. without notice to Anmarie Calgaro, who claims to have been rebuffed at every turn in her attempt to find out what was going on with the child to whom she referred as her “son.”

 

The essence of Calgaro’s claim is that in the absence of a court order declaring that E.J.K. was emancipated from her parents, none of these things should have happened.  Relying on  cases finding that parents have Due Process rights under the 14th Amendment concerning the custody, control and raising of their minor children, she claims that each of the defendants violated her constitutional rights by failing to give notice to her of what was happening, failing to afford her some kind of hearing in which she could state her position, and shutting her out from information about her child.

 

She had specifically requested from Cherry School Principal Johnson to have access to E.J.K.’s educational records, but was turned down.  She asked the government agency and the health care institutions for access to E.J.K’s records concerning her health care and her government assistance, but was turned down again.  Who knew a Legal Aid lawyer’s opinion letter could be so powerful!

 

District Judge Magnuson dismissed Calgaro’s lawsuit on May 23, 2017.  As a practical matter, E.J.K. was then less than two months from turning 18, at which point she would become a legal adult and emancipated as a matter of law, so Calgaro’s request for injunctive relief would quickly become moot.

 

The trial court rejected Calgaro’s argument that the county, the school district, the health care institutions, or the individual named plaintiffs had violated Calgaro’s constitutional rights by declaring her child to be emancipated, for, the judge concluded, the defendants “did not emancipate E.J.K. and Calgaro continues to have sole physical and joint legal custody of E.J.K.”  The question remaining is what flows from the fact that until turning 18, E.J.K. continued to be a minor in the custody of Calgaro, even though she was no longer living at home and was effectively managing her own life without parental guidance.

 

Turning first to the health care institutions, the court pointed out that they are not “state actors” but rather private, non-profit entities, so the Due Process Clause does not impose any legal obligations on them, and they could rely on the Legal Aid lawyer’s letter and act accordingly without accruing any liability under the federal constitution.

 

As to the school district, the court found that the district could not be held liable for actions of its employees, only for its own policies or customs, and there was no evidence that the school district had any particular policy or custom regarding how to deal with transgender students or their parents.  “Calgaro fails to provide any facts that the School District executed a policy or custom that deprived Calgaro of her parental rights without due process,” wrote Magnuson.

 

As to Principal Johnson, the court found that he enjoyed “qualified immunity” from any personal liability for the actions he took as principal of Cherry School, so long as he was not violating any clearly-established constitutional right of Calgaro, and the court found no support in published court opinions for a constitutional rights of parents to have access to their child’s school records.

 

The judge also rejected Calgaro’s argument that the County violated her rights by providing financial assistance to E.J.K. without Calgaro’s consent or participation.  The County was providing assistance based on its interpretation of a Minnesota statute that allows payment of welfare benefits to some who does not have “adequate income” and is “a child under the age of 18 who is not living with a parent, stepparent, or legal custodian” but “only if: the child is legally emancipated or living with an adult with the consent of an agency acting as a legal custodian,” with “legally emancipated” meaning “a person under the age of 18 years who: (i) has been married; (ii) is on active duty in the uniformed services of the United States; (iii) has been emancipated by a court of competent jurisdiction; or (iv) is otherwise considered emancipated under Minnesota law, and for whom county social services has not determined that a social services case plan is necessary, for reasons other than the child has failed or refuses to cooperate with the county agency in developing the plan.”

 

Judge Magnuson pointed out that under this statute, the county was not necessarily required to give E.J.K. financial assistance – it was a discretionary decision by the local officials – but that as with her suit against the school district, Calgaro failed to identify a policy or custom that would subject the county to liability.  The court found the county could not be held liable for violating Calgaro’s Due Process rights based on the decision by county officials to provide benefits to E.J.K., and that the head of the county welfare agency, also named a defendant, could not be sued because there was no evidence she had anything to do with the decision to provide the benefits.

 

Furthermore, Calgaro could not sue E.J.K. “Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of her parental rights without due process while acting under color of state law,” wrote Magnuson, who found that as all of Calgaro’s other claims had to be dismissed, any claim against E.J.K. had to fall as well.

 

Calgaro appealed to the 8th Circuit, which issued a brief decision on March 25, 2019, affirming the district court in all particulars.  Furthermore, noting the passage of time, Circuit Judge Steven Colloton wrote, “Calgaro’s remaining claims for declaratory and injunctive relief against the several defendants are moot.  E.J.K. has turned eighteen years old, ceased to be a minor under Minnesota law, and completed her education in the St. Louis County School District.  There is no ongoing case or controversy over Calgaro’s parental rights to make decisions for E.J.K. as a minor or to access her medical or educational records.”

 

Calgaro tried to argue that because she has three minor children other than E.J.K., she has a continuing interest in establishing as a matter of law that the various defendants should not be able to override her parental rights with respect to her remaining minor children, but the court found that “Calgaro has not established a reasonable expectation that any of her three minor children will be deemed emancipated by the defendants.”

 

Calgaro is represented by the Thomas More Society, a religious freedom litigation group, which is trying to use this case to establish the rights of parents, presenting two questions to the Supreme Court: first, whether parents’ Due Process rights to custody and control of their minor children “apply to local governments and medical providers” such that these entities cannot invade “parental rights, responsibilities or duties over their minor children’s welfare, education and medical care decisions without a court order;” and, second, in a rather long and convoluted question, whether the Minnesota statute defining emancipation is unconstitutional to the extent that it might be construed to authorize entities in the position of the defendants to do the things they did in this case.

 

Although the Petition does not stage this case as a religious free exercise case, the advocacy of Thomas More Society suggests that religious objections to transgender identity and transitional care underlie its interest in the case, and that if the Court were to grant the Petition, many religious organizations would be among those arguing that a parent should be able to prevent schools, government agencies, and health-care providers from assistant minors who identify as transgender from effectively freeing themselves from parental control as they seek to live in the gender with which they identify.

 

The National Center for Lesbian Rights provided legal representation to E.J.K. in the lower courts, and continues to represent E.J.K. as one of the named respondents in this Petition.

 

The odds against this Petition being granted are long, but the Court’s recent trend of taking an expansive view of religious free exercise rights suggests that it would not be totally surprising were the Court to take this case for review.

Catholic Foster Care Agency Seeks Supreme Court Review of Exclusion from Philadelphia Program

Posted on: July 24th, 2019 by Art Leonard No Comments

Catholic Social Services (CSS), a religious foster care agency operated by the Archdiocese of Philadelphia, has asked the U.S. Supreme Court to overrule a decision by the U.S. Court of Appeals for the 3rd Circuit, which on April 22 rejected CSS’s claim that it enjoys a constitutional religious freedom right to continue functioning as a foster care agency by contract with the City of Philadelphia while maintaining a policy that it will not provide its services to married same-sex couples seeking to be foster parents.  The decision below is Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).

CSS and several of its clients sued the City when the agency was told that if it would not drop its policy, it would be disqualified from certifying potential foster parents whom it deemed qualified to the Family Court for foster care placements and its contract with the City would not be renewed.  CSS insists that the City’s Fair Practices Ordinance, which prohibits discrimination because of sexual orientation by public accommodations, does not apply to it, and that it is entitled under the 1st Amendment’s Free Exercise Clause to maintain its religiously-based policy without forfeiting its longstanding role within the City’s foster care system.

The Petition filed with the Clerk of the Court on July 22 is one of a small stream of petitions the Court has received in the aftermath of its June 26, 2015, marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court held that same-sex couples have a right to marry and have their marriages recognized by the states under the 14th Amendment’s Due Process and Equal Protection Clauses.   Dissenters in that 5-4 case predicted that the ruling would lead to clashes based on religious objections to same-sex marriage.  Most of those cases have involved small businesses that refuse to provide their goods or services for same-sex weddings, such as the Masterpiece Cakeshop decision from last spring, 138 S. Ct. 1719 (2018).

This new petition is one of many that may end up at the Court as a result of clashes between local governments that ban sexual orientation discrimination and government contractors who insist that they must discriminate against same-sex couples for religious reasons.  Catholic foster care and adoption services have actually closed down in several cities rather than agree to drop their policies against providing services to same-sex couples. CSS argues that it will suffer the same fate, since the services it provides – screening applicants through home studies, assisting in matching children with foster parents, and providing support financially and logistically to its foster families through funding provided by the City – can only legally be provided by an agency that has a contract with the City, and that even as its current contract plays out, the refusal of the City to accept any more of its referrals has resulted in its active roster of foster placements dropping by half in a short period of time, requiring laying off part of its staff.

Desperate to keep the program running, CSS went to federal district court seeking preliminary injunctive relief while the case is litigated, but it was turned down at every stage.  Last summer, when the 3rd Circuit denied a motion to overturn the district court’s denial of preliminary relief, CSS applied to the Supreme Court for “injunctive relief pending appeal,” which was denied on August 30, with the Court noting that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the Application.  See 139 S. Ct. 49 (2018). That at least three justices would have provided interim relief suggests that CSS’s Petition for review may be granted, since the Court grants review on the vote of four justices, and Brett Kavanaugh, who was not on the Court last August, might provide the fourth vote.

According to its Petition, CSS dates from 1917, when the City of Philadelphia was not even involved in screening and licensing foster parents.  CSS claims that from 1917 until the start of this lawsuit, it had never been approached by a same-sex couple seeking to be certified as prospective foster parents.  CSS argues that as there are thirty different agencies in Philadelphia with City contract to provide this service, same-sex couples seeking to be foster parents have numerous alternatives and if any were to approach CSS, they would be promptly referred to another agency.  CSS argues that referrals of applicants among agencies are a common and frequent practice, not a sign of discrimination.

CSS has three different arguments seeking to attract the Court’s attention.  One is that it was singled out due to official hostility to its religiously-motivated policy and that the City’s introduction of a requirement that foster agencies affirmatively agree to provide services to same-sex couples was inappropriately adopted specifically to target CSS.  Another is that the 3rd Circuit misapplied Supreme Court precedents to find that the City’s policy was a “neutral law of general application” under the 1990 Supreme Court precedent of Employment Division v. Smith, 494 U.S. 872 (1990), and thus not subject to serious constitutional challenge.  Finally, CSS argues, the Smith precedent has given rise to confusion and disagreement among the lower federal courts and should be reconsidered by the Supreme Court.

Opponents of same-sex marriage have been urging the Court to reconsider Smith, which was a controversial decision from the outset.  In Smith, the Supreme Court rejected a challenge to the Oregon Unemployment System’s refusal to provide benefits to an employee who was discharged for flunking a drug test. The employee, a native American, had used peyote in a religious ceremony, and claimed the denial violated his 1st Amendment rights.  The Court disagreed, in an opinion by Justice Antonin Scalia, holding that state laws that are neutral regarding religion and of general application could be enforced even though they incidentally burdened somebody’s religious practices.  Last year, Justice Neil Gorsuch’s opinion, concurring in part and dissenting in part in Masterpiece Cakeshop, suggested reconsideration of Smith, and since the Masterpiece ruling, other Petitions have asked the Court to reconsider Smith, including the “Sweetcakes by Melissa” wedding cake case from Oregon.  So far, the Court has not committed itself to such reconsideration.  In the Sweetcakes case, it vacated an Oregon appellate ruling against the recalcitrant baker and sent the case back to the state court for “further consideration” in light of the Masterpiece Cakeshop ruling, but said nothing about reconsidering Smith.

The CSS lawsuit arose when a local newspaper, the Philadelphia Inquirer, published an article reporting that CSS would not provide foster care services for same-sex couples.  The article sparked a City Council resolution calling for an investigation into CSS.  Then the Mayor asked the Commission on Human Relations (CHR), which enforces the City’s Fair Practices Ordinance (FPO), and the Department of Human Services (DHS), which contracts with foster care agencies, to investigate.  The head of DHS, reacting to the article’s report about religious objections to serving same-sex couples, did not investigate the policies of the many secular foster care agencies.  She contact religious agencies, and in the end, only CSS insisted that it could not provide services to same-sex couples, but would refer them to other agencies.

After correspondence back and forth and some face to face meetings between Department and CSS officials, DHS “cut off CSS’s foster care referrals,” which meant that “no new foster children could be placed with any foster parents certified by CSS.”  DHS wrote CSS that its practice violated the FPO, and that unless it changed its practice, its annual contract with the City would not be renewed. This meant that not only would it receive no referrals, but payments would be suspended upon expiration of the current contract, and CSS could no longer continue its foster care operation.  CSS and several women who had been certified by CSS as foster parents then filed suit seeking a preliminary injunction to keep the program going, which they were denied.

CSS’s Petition is artfully fashioned to persuade the Court that the 3rd Circuit’s approach in this case, while consistent with cases from the 9th Circuit, is out of sync with the approach of several other circuit courts in deciding whether a government policy is shielded from 1st Amendment attack under Smith.  Furthermore, it emphasizes the differing approaches of lower federal courts in determining how Smith applies to the cases before them.  The Supreme Court’s interest in taking a case crucially depends on persuading the Court that there is an urgent need to resolve lower court conflicts so that there is a unified approach throughout the country to the interpretation and application of constitutional rights.

The Petition names as Respondents the City of Philadelphia, DHS, CHR, and Support Center for Child Advocates and Philadelphia Family Pride, who were defendant-intervenors in the lower courts.  Once the Clerk has placed the Petition on the Court’s docket, the respondents have thirty days to file responding briefs, although respondents frequently request and receive extensions of time, especially over the summer when the Court is not in session.  Once all responses are in, the case will be distributed to the Justices’ chambers and placed on the agenda for a conference.  The Court’s first conference for the new Term will be on October 1.

Last summer, when the Court was considering Petitions on cases involving whether Title VII of the Civil Rights Act forbids sexual orientation or gender identity discrimination, the U.S. Solicitor General received numerous extensions of time to respond to the Petitions, so those cases were not actually conferenced until the middle of the Term and review was not granted until April 22.  Those cases will be argued on October 8, the second hearing date of the Court’s new Term.

The Petitioners are represented by attorneys from The Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for broad rights of free exercise of religion, and local Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien.  Their framing of this case is reflected in the headline of their press release announcing the Petition: “Philly foster mothers ask Supreme Court to protect foster kids.”

Municipal respondents are represented by Philadelphia’s City Law Department.  Attorneys from the ACLU represented the Intervenors, who were backing up the City’s position, in the lower courts.

The 3rd Circuit was flooded with amicus briefs from religious freedom groups (on both sides of the issues), separation of church and state groups, LGBT rights and civil liberties groups, and government officials.  One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorney generals of several conservative states.  The wide range and number of amicus briefs filed in the 3rd Circuit suggests that the Supreme Court will be hearing from many of these groups as well, which may influence the Court to conclude that the matter is sufficiently important to justify Supreme Court consideration.

Oklahoma Supreme Court Rules for Same-Sex Co-Parent Standing in “Parity” With Birth Mother in Custody Dispute

Posted on: July 1st, 2019 by Art Leonard No Comments

The Oklahoma Supreme Court ruled 8-1 in Schnedler v. Lee, 2019 WL 2588577, 2019 Okla. LEXIS 49 (June 25, 2019), that “a non-biological same-sex parent stands in parity with a biological parent,” and that once standing requirements are met, “the court shall adjudicate any and all claims of parental rights – including custody and visitation – just a the court would for any other legal parent, consistent with the best interests of the child.”  The lone dissenter, Justice Richard Darby, claimed that the court had issued an “advisory opinion” that was beyond its purview, and should have used “judicial restraint” and based its holding on “the narrowest grounds possible.”  Instead, the court treated it prior precedent on the issue of same-sex co-parent standing as obsolete and substituted an entirely new analysis.  Chief Justice Noma Gurich wrote the court’s opinion.

Lori Schnedler and Heather Lee met each other in the early 2000s, while both were employed by the Bartlesville Police Department, their relationship progressing from co-workers to co-habitants of an apartment.  After Lori did overseas military service, they bought a house together and decided to have a child.  “A work friend of Heather’s, Kevin Platt, agreed to serve as the sperm donor,” wrote Justice Gurich, but after donating his sperm, was not an active participant in the relationship between the women and their child.   Until the break-up of the couple years later and the resulting litigation, Kevin, who was married and had children from his marriage, did not have a relationship with the child.  After the break-up and the ensuing litigation, Kevin got involved and began to establish a relationship with the child.

The child was born in July 2007, either years before the Supreme Court decided Obergefell and a 10th Circuit decision, for which cert had been denied, resulted in marriage equality being available in Oklahoma.  The women’s relationship ended in April 2015, as the marriage equality issue was coming to a head in the courts.  Heather left the home they had shared, taking the child with her.  Although she allowed Lori regular visitation for seven months, Heather “suddenly denied Lori any further contact with their daughter,” wrote Gurich. “Since that time, Lori has neither seen nor spoken with J.L.”

Lori filed suit in December 2015, petitioning for an adjudication of the child’s custody, visitation, and child support, relying on the doctrine of in loco parentis, which the Oklahoma courts had recognized to some extend in prior same-sex parent disputes of this nature.  Heather objected to the petition “and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings.  Additionally, both Heather and Kevin brought cross-claims in the action, requesting the trial court’s determination that Kevin was J.L’s ‘biological and natural father’ and therefore entitled to full parental rights of custody, visitation, and support,” even though Kevin “was not demonstrably involved in J.L.’s life” before the lawsuit began.  Heather and Kevin both challenged Lori’s standing to bring the action, and the trial judge actually agreed, interpreting the state’s existing precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (Okla. 2015), as requiring the sperm donor to “consent to, and encourage, the non-biological partner’s parental role” in order to find parental standing for the co-parent. In this case, the sperm donor was a third party custody claimant as well and opposing Lori’s petition. The Court of Civil Appeals affirmed the trial court’s dismissal of Lori’s petition.  The Oklahoma Supreme Court granted certiorari “to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same.”

First, the court found that the lower courts had misconstrued its earlier holding, which it insisted did not empower the sperm donor to stand as a barrier to the co-parent’s standing in a case like this one.  Going further, the court found its prior precedents using the doctrine of in loco parentis to be inadequate for present purposes, particularly in light of the U.S. Supreme Court’s concern, expressed in Obergefell v. Hodges, that children being raised by same-sex parents should not have to suffer their families being considered as “lesser” to traditional heterosexual families.

“In announcing today’s decision,” wrote Justice Gurich, “we are mindful of the need to establish practical guidelines for state courts.  We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate – by a preponderance of the evidence – that he or she has engaged in family planning with the intent to parent jointly[,] acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child.  As always, a court shall assess these factors with the best interests of the child as its foremost aim.  When a continuing relationship with the non-biological parent is in those interests, a court must honor its validity and safeguard the perpetuation of that bond.  In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.”

The court specifically rejected the use of in loco parentis as the deciding doctrine in such cases.  Justice Gurich wrote that “in loco parentis – at root, a legal fiction – is ‘by its very nature, a temporary status.’  Temporary and uncertain parental status only exacerbates the frequency of cases like today’s and creates an inherently more unstable environment for the children of same-sex couples.  Their children see them as mom or dad.  The law should treat them as such.”  The court asserted that its holding was “consonant with the constitutional protections guaranteed in Obergefell.

In his dissent, Justice Darby argued that the case could be resolve in Lori’s favor by a finding that the requirements of Ramey v. Sutton had been met in this case and that Lori could be accorded in loco parentis standing.  However, he argued, the court’s reformulation of the rules for finding standing for co-parents was unnecessary, and this an “advisory opinion,” and “This Court does not issue advisory opinions.”

Lori Schnedler is represented y Christopher U. Brech of McDaniel Acord & Lytle PLLC, Tulsa, and Michael F. Smith of McAfee & Taft, also Tulsa.  Heather Lee is represented by Bryan J. Nowling, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., also of Tulsa.  “No appearance for Kevin Platt, Third Party Defendant/Appellee,” states the clerk’s summary.

Colorado Appeals Court Raises 8th Amendment Concerns Regarding Mandatory Sex Offender Registration for Juvenile Offenders

Posted on: July 1st, 2019 by Art Leonard No Comments

In a startling turn of events, a three-judge panel of the Colorado Court of Appeals rejected many years of its own precedents on June 20 when it ruled in People of the State of Colorado, In the Interest of T.B., Juvenile, 2019 WL 2528764, that imposing a lifetime sex offender registration requirement on a young person whose sex-related crimes were committed when he was a minor is a form of punishment, so before imposing it a court must determine whether it violates the minor’s 8th Amendment rights.  Writing for the majority of the panel, Judge Craig R. Welling did not specify the offenses for which T.B. was convicted, merely describing them as “unlawful sexual behavior.”

T.B. was adjudicated for “unlawful sexual contact” at age 12 in 2001, and in 2005 he pleaded guilty to a sexual assault charge.  He successfully completed the probation to which he was sentenced as well as offense-specific treatment.  Although the court does not go into the details of his offenses, the fact that he was not sentenced to confinement suggests that the crimes were not violent.  He has no other criminal record apart from the two sex offenses.  He filed a pro se petition in 2010 to discontinue the registration requirement, reporting that he had “successfully completed the terms and conditions of my sentence related to that offense” and that “I have not been subsequently convicted or adjudicated a juvenile delinquent for any offense involving unlawful sexual behavior.”  The trial judge granted T.B.’s petition as to the 2000 case, but concluded that by statute he could not be relieved of the registration requirement because he was a repeat offender. This was despite the court’s finding that T.B. “has earned the right not to have to register” and “he is not a risk to sexually reoffend.”  T.B. eventually obtained counsel, Gail K. Johnson and Katherine C. Steefel of Johnson & Klein, PLLC, Boulder (CO), and filed a second petition, claiming that lifetime registration violated his due process and 8th Amendment rights.  The court rejected his constitutional arguments, relying on People in the Interest of J.O., 383 P.3d 69 (Colo. Ct. App., 2015), which held that registration does not impose a punishment, rendering the due process and 8th Amendment arguments irrelevant.

The Colorado Sex Offender Registration Act requires that juveniles who are twice adjudicated for unlawful sexual behavior categorically must register as sex offenders for life.  Responding to T.B.’s appeal, a majority of the three-judge Court of Appeals rejected the precedent of Interest of J.O. and earlier similar holdings.  Judge Welling pointed out that T.B.’s petition requires a two-step analysis: first, whether registration is a punishment, and second, whether imposing registration is “cruel and unusual.”  In this as in past cases raising the issue, the trail court had never gotten to an analysis of evidence as to whether the requirement is cruel and unusual, having been stopped at the first step by the court’s holding that registration is not a punishment, rendering the 8th Amendment irrelevant.  The court decided that this question could arise both in terms of whether the statutory provision is facially unconstitutional, or whether it is unconstitutional as applied, and decided that it was appropriate to remand to the trial court to make the initial determination after an appropriate factual inquiry.

Prior rulings had focused on the civil nature of the requirement, but the court agreed with T.B.’s argument that it was possible that the punitive effect of the requirement could override its civil intent, while noting that the legislative history includes comments by legislators that would support their understanding about the punitive nature of such a requirement.  Judge Welling described a seven-factor analysis that had been proposed by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to determine whether a requirement conceived by the legislature as civil should be deemed punitive.  The factors are: “(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether the court imposes the sanction only upon a particular finding of scienter; (4) whether its operation will promote the traditional aims of punishment; (5) whether the behavior to which it applies is a crime; (6) whether there is a rational connection to a nonpunitive purpose; and (7) whether it appears excessive in relation to the nonpunitive purpose.”

Applying the Mendoza-Martinez factors, the court concluded that several support T.B.’s argument that registration may be punitive in his case.  First, the court found, “the effect of requiring a juvenile to register as a sex offender for life is reminiscent of traditional forms of punishment.  The dissemination of information that is then used to humiliate and ostracize offenders can resemble forms of punishment that historically have been used to ensure that offenders cannot live a normal life.”  The court also noted that because juvenile proceedings are sealed, information about them is generally not available to the public, but the registration requirements makes them available to the public.  On this point, the court distinguished U.S. Supreme Court rulings that sex offender registration is not punitive, noting that all those cases involved adult sex offenders, the records of whose convictions “are presumptively public.”  This means that, although the Colorado register of juvenile sex offenders is not listed on the internet, the information is available to anybody who is doing a background check on T.B. in connection with a job application, since “any member of the public may request and obtain from his or her local law enforcement agency a list of sex offenders” that would include juvenile offenders.  At the hearing on T.B.’s petition, his parole officer (who was supporting his request) testified that “information about T.B.’s status as a sex offender could still show up in a background check and be the basis for T.B. losing an apartment or being fired from a job.

Judge Welling noted the U.S. Supreme Court’s recognition that “juveniles are different from adults for the purposes of the 8th Amendment,” and commented that “this differentiation is particularly acute when considering the consequences that juveniles face when they are required to register as sex offenders.”

Moving to another Mendoza-Martinez factor, Welling found that the “lifetime registration requirement promotes the traditional aims of punishment – ‘retribution and deterrence.’”  Furthermore, the behavior to which the registration provision applies “is already a crime,” he wrote, continuing, “For juveniles, CSORA’s lifetime registration requirement sweeps in only those who have been adjudicated for committing past crimes – and, once the requirement to register for life is imposed, it does so without regard to whether he or she is likely to reoffend.”  This also supports the contention that it is punitive in nature.

“The final two factors – whether there is a rational connection between the sanction and its stated nonpunitive purpose and whether the statute is excessive given that purpose – must be considered together,” wrote Welling.  While conceding that there is a connection to public safety, Welling concluded, the question is whether the requirement is excessive “given the important public safety justifications at issue,” and here, he pointed out, “a growing number of states have concluded that lifetime registration requirements similar to CSORA’s are excessive as applied to juveniles considering their nonpunitive purpose.”  He cited an quoted from decisions by several other state appellate courts on this point, while conceding that several opinions from other states rejected the contention of excessiveness.  On balance, the majority of this panel was more persuaded by the opinions finding excessiveness, concluding that “requiring a juvenile, even one sho has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard for whether he or she poses a risk to public safety is an overly inclusive – and therefore excessive – means of protecting public safety.  That overinclusiveness is exemplified in this case,” as the juvenile court found that T.B. was unlikely to reoffend.  Thus, the rational connection between the requirement and the nonpunitive public purpose was questionable, and the registration requirement, at least in T.B.’s case, arguably functions as a punishment.

But, the court concluded, the question whether imposing the requirement is “cruel and unusual punishment” remains to be determined, since it requires a “fact-intensive inquiry” and is “best addressed by the trial court in the first instance.”  Although T.B. submitted some evidence on this point, the state did not offer rebuttal testimony, content to rest on the solid precedent rejecting application of the 8th Amendment to registration requirements.  Similarly, because of the Colorado precedent holding registration to be nonpunitive, the trial judge never rendered a conclusion on the merits of the claim that imposing it was “cruel and unusual punishment.”  A remand is required for such a determination.  On another point, the court noted T.B.’s argument that the statute “creates an impermissible irrebuttable presumption that a previous offender will offend again and, therefore, remains a danger to the community forever,” but asserts that T.B.’s briefing failed to articulate the constitutional basis for that argument, and refrained from addressing it on the merits.

Dissenting Judge John R. Webb rejected the court’s analysis, reiterated the significance of repeated past holdings that the registration requirement is not punitive, and noting that the requirement in this case is authorized by statute, the legislature could amend or repeal it.  “Because relatively recent United States Supreme court cases imposing constitutional limitations on juvenile sentencing deal with palpable punishements – the death penalty and life without possibility of parole,” Webb wrote, “those cases provide little guidance in answering the preliminary question whether mandatory registration is punishment at all.  So, I discern insufficient reason to disavow our unanimous precedent.  Reaching an issue not address by the majority, I further conclude that the requirement does not violate due process, either on its face or as applied to T.B.  Both the majority’s heavy reliance on out-of-state authority and T.B.’s contrary policy arguments are better addressed by the General Assembly or our supreme court.  Therefore, and with respect, I dissent.

The immediate question is whether the State will appeal this ruling to the Colorado Supreme Court and, if need be, to the U.S. Supreme Court, as it raises a question of federal constitutional interpretation.  Judge Welling’s opinion notes that appellate courts of other states are divided on the question, which would provide a strong basis for the U.S. Supreme Court to grant a cert petition on the issue.

N.Y. Appellate Division Revives Gay Dad’s Petition to Adopt His Son Conceived Through Gestational Surrogacy

Posted on: June 29th, 2019 by Art Leonard No Comments

A unanimous four-judge panel of the Brooklyn-based New York Appellate Division (2nd Department) revived a gay dad’s petition to adopt his son, reversing a “clearly erroneous” decision by Queens County Family Court John M. Hunt.  Hunt stated two reasons for dismissing the adoption petition: first, that the child was the result of a gestational surrogacy contract, and Hunt said permitting the adoption would validate “a patently illegal surrogacy contract,” and, second, that there was no authority under New York law for a parent to adopt his or her own biological child.  The June 26 Appellate Division opinion by Justice Alan D. Scheinkman clearly explained why both of those reasons are wrong, and the panel pointedly directed that the case be sent to a different Family Court judge to determine whether it was in the best interest of the child to grant the adoption, an easy decision in the circumstances.

The Appellate Division decision is particularly important and timely in light of the state legislature’s failure to pass a bill reforming the state’s laws on surrogacy, which are a legacy of reactions to an old New Jersey Supreme Court decision, the “Baby M Case,” which received sensational media coverage in reaction to an emotionally charged situation in which a surrogate mother refused to give up custody of a child to its intended parents, spiriting the child out of the state to avoid giving it up.  In that case, the N.J. Supreme Court ruled that the surrogacy contract was unenforceable, but that the biological father, who with his wife had contracted with the surrogate to carry the child, could seek custody.  Ultimately, the trial court granted visitation rights to the surrogate while awarding custody to the biological father in that case.

In Matter of John (Joseph P.), 2019 N.Y. App. LEXIS 5110, 2019 WL 2607522, 2019 NY Slip Op 05132, the New York case, a single gay man, called Joseph P. in the court’s opinion, wanted to have children who would be biologically related to him.  In 2012, he arranged under medical supervision to have embryos created using his sperm and eggs from an anonymous donor.  Then he found a woman who was willing to be a gestational surrogate on a volunteer basis, signing an agreement to waive parental rights as a birth mother and consent to the children’s adoption by Joseph P.  Some of the embryos were successfully implanted and twins, a boy and a girl, were born in 2013.  (This arrangement is sometimes referred to as “compassionate surrogacy.”) A Family Court judge granted Joseph P.’s petition to adopt the twins without any fuss or drama.  The embryos that were not used were frozen for possible future use.

In 2017, Joseph P. decided he would like to have more children using the remaining frozen embryos.  A woman friend agreed, again on a volunteer basis, to be the gestational surrogate, making an agreement that Joseph P. would adopt any resulting children, and a fertility clinic implanted two embryos.  This time only one was successful, and John was born in October 2017.  Joseph P. brought John home from the hospital and John has been in his care ever since, living together with Joseph P.’s other children as a family unit.  As part of the surrogacy agreement, the surrogate waived any parental rights and consented to the child’s adoption by Joseph P., but as a matter of course, only her name is listed as the mother on the child’s birth certificate.

Then Joseph P. ran into the roadblock of Judge Hunt, who misconstrued the surrogacy and adoption laws and dismissed Joseph P.’s adoption petition, despite a social worker’s favorable home study that found Joseph P. to be, as described in Justice Scheinkman’s opinion, “a mature, stable, and caring person who intentionally created a family of himself, the twins and John.”  The social worker concluded that “John’s adjustment appeared to be excellent, and it was clear that [Joseph P.], his twins, and John are a cohesive family unit.” The social worker’s report was supplemented with medical documentation and letters of reference.

Judge Hunt dismissed the petition based on his misinterpretation of both the surrogacy law and the adoption law.

Justice Scheinkman provided a careful description of the statutory framework governing surrogacy in New York.  The legislature provided that surrogacy contracts may not be enforced by the courts as a matter of public policy, and are treated as void.  But, the only surrogacy contracts that are actually outlawed are those in which the surrogate is to be compensated, in effect selling their gestational services.  It was clear to the Appellate Division that the legislature did not mean to outlaw voluntary surrogacy arrangements, merely to make them judicially unenforceable.

The distinguishing element of a criminal statute is the imposition of a penalty for its violation.  New York’s law on surrogacy imposes no penalty for entering into a voluntary surrogacy agreement.  It does impose a small monetary penalty for entering into a compensated surrogacy agreement, and a large penalty for people who act as “brokers” to arrange compensated surrogacy agreements.

New York trial courts, while abstaining from enforcing voluntary surrogacy agreements, have approved adoptions in the past where surrogates, whether voluntary or compensated, had waived their parental rights as birth mothers and had given formal consent to adoption of the children by biological fathers.

The bills under consideration in the legislature during the session just ended would have modified the laws to permit compensated surrogacy agreements subject to substantial regulation, but the details and the general concept proved too controversial to gain approval.  However, the Appellate Division’s careful analysis of the existing statutes made clear that the arrangement entered into by Joseph P. and his gestational surrogate was not, as Judge Hunt had stated, “patently illegal,” a result that Justice Scheinkman found to be “clearly erroneous.”  Furthermore, Joseph P.’s petition was not an action to “enforce” the surrogacy agreement.  No such judicial “enforcement” was necessary, because the surrogate had executed the necessary documents to waive parental rights and consent to the adoption.

Turning to Hunt’s second ground for dismissing the petition, the Appellate Division found no basis in the adoption statute for the proposition that a biological father may not adopt his own child.  Judge Hunt had asserted that such an adoption would not serve the purposes of the adoption statute because the adoption “would confer rights upon a parent which already existed.”  Justice Scheinkman pointed out the error of this view.

When John was born, the only name placed on his birth certificate was that of the birth mother, the gestational surrogate.  At that point, she was the only legal parent.  That Joseph P. was the biological parent did not automatically make him the legal parent, because Joseph P. had no legal relationship with the surrogate, as the contract they made was not legally enforceable.  Joseph P. could bring an “action of filiation” to prove he was the biological father, but that would not establish a full legal parent-child relationship with all the rights and responsibilities flowing from it.  In fact, actions of filiation are more usually brought by single birth mothers to prove the identity of the biological father in order to impose support obligations on him, not to bestow him with custody of the child!

“Here,” wrote Justice Scheinkman, “the appellant, an otherwise qualified ‘adult unmarried person,’ seeks to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child.  The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child.  We disagree.  The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose.”

The text of the adoption statute does not mention biological relationships between parents and children.  It merely specifies who can adopt a child, listing, among others, an “adult unmarried person.”  It is up to the court to determine whether granting the adoption would be in the best interest of the child.  “While adoption is a statutory creation,” wrote Scheinkman, “the adoption sought here is authorized by the governing statute and there is nothing in the statute which precludes it.  Further, to the extent that the Legislature has contemplated this subject, it has permitted adoptions notwithstanding an existing biological connection.”  The court then cited several cases involving unusual situations where courts had approved adoptions of children by their biological fathers.  While conceding that “the issue we consider here is relatively novel and there is little by way of precedent,” said the court, what cases there were supported allowing the adoption.

“The appellant, at present, has no legal relationship with the child,” observed the court, and the gestational mother did not seek to have a legal parental relationship with John.  “Thus, an adoption of this child by the appellant would create a legal parent-child relationship where none previously existed, while severing a legal relationship with the gestational mother that exists solely as a legal abstraction with no physical or emotional manifestation.  While the appellant could obtain an order of filiation,” continued the court, “such would leave the surrogate as the legal mother, which was not their intent in creating the child.  Further, the continuance of a bare legal tie between the child and the surrogate would not require her to actually assume a maternal role toward the child.  The surrogate would be left as a vestigial parent only.  While her rights could be terminated for abandonment or neglect, absent an adoption, only governmental authorities could initiate termination proceedings, leaving both the appellant and the child at the mercy of governmental discretion.”

The court characterized an order of filiation as a “shallow remedy” in this situation, since it would impose on Joseph P. only some of the obligations of parenthood.  For example, it would not provide Joseph P. “with judicial authorization to make decisions on behalf of the child” that a parent would ordinarily make, such as medical treatment decisions.  Joseph P. would then be left to initiate a new custody proceeding, “thus requiring him to initiate successive and time-consuming proceedings in which the ostensible adverse party would be the gestational surrogate who had already renounced her own tie to the child.”

The court concluded that allowing a biological parent to adopt a child born through gestational surrogacy “complies with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption is in the best interests of the child.”  Because this appeal was resolved based on construction of the statutes, the court refrained from addressing Joseph P.’s alternative argument claiming that Judge Hunt’s ruling denied him equal protection of the law in violation of the Constitution, or that the ruling discriminated against him because of his single marital status.

Joseph P. formally represented himself on the appeal.  As noted above, the court sent the case back to Queens County Family Court “to be conducted forthwith before a different Judge.”