The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
Trump-appointee Neil Gorsuch wrote the Court’s opinion, joined by Chief Justice John Roberts (a George Bush appointee), and the four Justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (Bill Clinton) and Sonia Sotomayor and Elena Kagan (Barack Obama).
Samuel Alito, appointed to the Court by George Bush, wrote an outraged dissenting opinion, joined by Clarence Thomas, who was appointed by George H.W. Bush. Trump-appointee Brett Kavanaugh penned a more temperate dissent, concluding with a surprising salute to the movement’s achievement of this milestone.
Justice Gorsuch’s emergence as the writer of this opinion caught many by surprise, since he is an acolyte of Justice Antonin Scalia, whom he replaced on the Court. Despite Scalia’s avowed commitment to many of the interpretive principles that Gorsuch also embraces, one could not imagine Scalia writing such an opinion, especially in light of the vitriolic dissenting opinions that he wrote to all four prior landmark opinions.
Because Chief Justice Roberts voted with the majority of the Court, he was in the position to assign the majority opinion to Gorsuch. Had this been a 5-4 ruling without Roberts, Justice Ginsburg, the senior justice in the majority, would have decided which justice would write for the Court. In the two marriage equality rulings, Justice Anthony Kennedy, whose approach to gay issues had been established in earlier cases, assigned the opinions to himself as senior justice in the majority. Ginsburg might well have assigned the opinion to Gorsuch in any event, to help secure his vote, especially as it was possible that if Ginsburg or one of the other Democratic appointees wrote an opinion embracing arguments Gorsuch could not accept, he might either drift away or write a concurrence in the judgment, resulting in a plurality opinion. It is even possible that Roberts’ vote came from his institutional concern that such a significant ruling have the weight of a 6-3 vote. Since there were already five votes in favor of the employee parties, his vote would not affect the outcome, but would give him some control over the opinion through his assignment to Gorsuch.
The 1996 landmark gay rights ruling was Romer v. Evans, a decision that established for the first time that a state’s discrimination against “homosexuals” violated the 14th Amendment’s Equal Protection Clause, striking down a homophobic amendment that Colorado voters had added to their state constitution, forbidding the state from providing anti-discrimination protection to gay people. Justice Kennedy’s opinion for a 6-3 Court found that the only explanation for the Colorado amendment’s adoption was animus against lesbians and gay men, never a constitutionally valid reason, so the Court did not expressly consider whether heightened scrutiny would apply to a sexual orientation discrimination claim.
The second landmark decision was Lawrence v. Texas (2003), declaring that a state law making gay sex a crime violated the guarantee of liberty in the 14th Amendment’s Due Process clause, and overruling a 1986 decision, Bowers v. Hardwick, which had rejected such a challenge to Georgia’s penal law.
The third landmark, United States v. Windsor, held in 2013 that the federal government must recognize same-sex marriages that states had authorized, striking down Section 3 of the Defense of Marriage Act, which had put into the United States Code a definition of marriage limited to different-sex couples. The Court held that this violated the Due Process and Equal Protection rights of same-sex couples under the 5th Amendment, again without explicitly engaging in discussion of whether a law discriminating based on sexual orientation is subject to heightened scrutiny.
The fourth landmark, Obergefell v. Hodges, held in 2015 that gay people enjoyed the same fundamental right to marry that had previously been guaranteed to straight people under the Due Process and Equal Protection Clauses of the 14th Amendment. Since the Court dealt with this as a fundamental rights case, both from the perspectives of due process and equal protection, it again avoided discussing whether the discriminatory aspect of the case implicated a suspect or quasi-suspect classification of sexual orientation.
In each of these cases, Justice Anthony M. Kennedy, Jr., wrote for the Court. The decisions were noteworthy as being the product of an otherwise conservative Court whose Republican appointees outnumbered the Democratic appointees. In Windsor and Obergefell, Kennedy was the only Republican appointee to side with the Democratic appointees to make up the 5-4 majority of the Court. Justice Sandra Day O’Connor, who was appointed by Ronald Reagan, cast a sixth vote for the prevailing parties in Romer and Lawrence. Her replacement, Justice Alito, dissented in Windsor and Obergefell, as well as Bostock.
The Bostock decision, incorporating two other cases, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, was the first major LGBT rights decision by the Court since Kennedy retired and Trump made his second appointment to the Court, seemingly locking in a solid conservative majority that was expected not to be so receptive to LGBT rights claims. With the retirement of Kennedy, it was widely believed that it would be unlikely for a gay rights claim to carry a majority of the Court.
Consequently, when the Court announced more than a year ago that it would review these three cases, tremors ran through the LGBT rights legal community. Although progress had been made in persuading the Obama Administration – including the EEOC – and the lower federal courts that Title VII’s ban on “discrimination because of an individual’s sex” could be interpreted to forbid discrimination because of sexual orientation or gender identity, it was difficult for people to count a fifth vote to add to the presumed votes of the Democratic appointees on the Court. Chief Justice Roberts had emphatically dissented from the Windsor and Obergefell rulings, and LGBT rights groups had strongly opposed the nominations of Gorsuch and Kavanaugh, based on their extremely conservative records as court of appeals judges, which was seemingly borne out in Gorsuch’s case by his dissent in Pavan v. Smith (2017), taking the transparently incorrect position that the Court had not clearly held in Obergefell that same-sex marriages must be treated the same as different-sex marriages for all legal purposes, including birth certificates, something specifically mentioned in Kennedy’s Obergefell opinion. Nobody really thought it possible that Alito or Thomas would ever cast a vote in favor of an LGBT employee’s claim, but Kavanaugh and Gorsuch were a question marks, as was the unpredictable chief justice, despite his anti-LGBT voting record up to that time.
The only facts about these cases that were relevant to the Supreme Court’s decision were that the three employees whose discrimination claims ended up before the Court claimed that they were fired because of their sexual orientation (Gerald Bostock and Donald Zarda) or their gender identity (Aimee Stephens) in violation of Title VII’s ban on sex discrimination. The merits of the Title VII claims had not been decided in Bostock or Zarda, because the district courts in both cases found the claims not to be covered under Title VII and dismissed them. Aimee Stephens’ Title VII claim survived a motion to dismiss, however; the district court found that although Title VII, standing alone, was violated in her case (but solely using a gender stereotype theory rather than holding the gender identity claims are necessarily covered by Title VII), but that the employer, a deeply religious funeral home owner, had a valid defense under the Religious Freedom Restoration Act (RFRA), and so granted judgement to the employer. The 11th Circuit affirmed the dismissal in Bostock, as did a three-judge panel of the 2nd Circuit in Zarda, but the 2nd Circuit ultimately reversed the dismissal en banc. The Equal Employment Opportunity Commission (EEOC), which had sued on Stephens’ behalf, appealed to the 6th Circuit, which reversed the district court, finding the RFRA defense invalid, and ruling that Stephens’ gender identity discrimination claim had been proven. The 6th Circuit also rejected the district court’s conclusion that the EEOC, representing Stephens, was limited to a gender stereotyping claim, expanding on its prior precedents to hold that gender identity claims are necessarily covered by Title VII as a form of sex discrimination. Thus, the only final merits ruling in the cases before the Court was the EEOC’s (and Stephens’) victory in the 6th Circuit. Stephens had intervened at the 6th Circuit, represented by the ACLU, making her a respondent alongside the EEOC in the Supreme Court.
After the Trump Administration took office, the Solicitor General took over the case from the EEOC and, consistent with the Administration’s view that Title VII did not forbid gender identity discrimination, effectively “changed sides,” arguing that the employer should have prevailed. But, surprisingly inasmuch as the employer was being represented by Alliance Defending Freedom, a conservative religious freedom litigation group, the employer had not sought review of the 6th Circuit’s rejection of its RFRA defense, so the only question before the Court was the Title VII interpretation issue. Stephens was left to defend the 6th Circuit’s ruling, with the EEOC, represented by the Solicitor General, on the other side. The Solicitor General also participated as an amicus on behalf of the government in the Bostock and Zarda cases.
There was a big difference between the earlier landmark cases and this case. The four landmarks all involved interpretations of Constitutional Due Process and Equal Protection, and were decided, in sometimes quite emotional opinions by Justice Kennedy, based on concepts of human dignity and equality. The Bostock case, by contrast, was a matter solely of statutory interpretation, and solely of Title VII (despite Justice Alito’s decision to dwell on the RFRA question in his dissent). Perhaps surprisingly, two of the most ardent “textualists” on the Court, Trump’s appointees, parted company about how to apply that approach in determining the meaning of a 55-year-old statute.
Textualists contend that statutory interpretation is a matter of figuring out what the meaning of statutory language was at the time it was adopted. Extraneous information, such as congressional committee reports, hearing transcripts, speeches on the floor of Congress or statements inserted into the Congressional Record, are generally rejected by textualists, who argue, as Scalia memorably wrote in a 1998 opinion also involving Title VII and sex discrimination, that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Gorsuch and Kavanaugh (as well as Alito) swear allegiance to this principle, but it took them in different directions in this case. Gorsuch, who had signaled this result as a possibility during the oral argument on October 8 last year, inclined towards a literalistic approach to the words of Title VII. While claiming that he was trying to determine “the ordinary public meaning” of the words at the time they were enacted, he rejected the argument that this meant that sexual orientation and gender identity could not possibly be covered, because he was persuaded by various arguments and examples that the statute as properly understood has always prohibited discrimination against people because of their “homosexuality” or “transgender status.” He wrote, “an employer who intentionally treats a person worse because of sex – such as firing the person for actions or attributes it would tolerate in an individual of another sex – discriminates against that person in violation of Title VII.”
Having accepted that point, he found persuasive several examples offered by counsel for Bostock and Zarda. Most prominent was the example of two employees, a man and a woman, with equally good qualifications, work records, and so forth, both of whom are attracted to men. The employer will hire the woman but reject the man. Because the employer will tolerate attraction to men by women but not by men, the employer’s refusal to hire the man is discrimination because of the man’s sex.
Stating his holding more generally, he wrote: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other facts besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” The idea is that sex is supposed to be irrelevant to a personnel decision unless, as the statute provides, the employer can prove that sex is a bona fide occupational qualification for the job in question, an affirmative defense provision that Gorsuch neglects to mention. But Gorsuch agreed that making a personnel decision because the person is gay or transgender makes sex relevant to the decision, and thus is generally prohibited by Title VII. Or, as he put it quite strongly, “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The issue, wrote Gorsuch, is whether the plaintiff’s sex is a “but-for” cause of the challenged personnel action, but it doesn’t have to be the sole cause, because the statute does not expressly require that. “When an employer fires an employee because she is homosexual or transgender,” he explained, “two causal factors may be in play, both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” Because all three cases being argued involved discharges, it is not surprising that Gorsuch mentions only discharges, but the clear important of the decision is that all the personnel actions coming within the scope of Title VII come within this ruling.
Responding to the argument that this could not possibly be the meaning of a statute passed in 1964, Gorsuch insisted that it has always been the meaning, it just was not recognized as such by the courts until more recently. He characterized this as the “elephant in the room” that everybody pretended was not really there. It was now time to recognize the presence of the elephant.
Aside from some passing references, Gorsuch’s interpretive discussion, and the examples he presented, focused mainly on the sexual orientation issue, but he was careful to mention gender identity or transgender status as well as sexual orientation whenever he stated his conclusions.
Alito unkindly stated in his dissent that Gorsuch’s conclusion that sexual orientation and gender identity are covered by Title VII is “preposterous.” Alito’s focus on the “original meaning” of statutory language, which he documents at length, shows as a matter of the historical record that in 1964 gay people were widely reviled as sick criminals, so it is impossible in his view to read the statutory language of 1964 as forbidding discrimination on this ground. Furthermore, he pointed out, as of 1964 the public’s awareness of transgender individuals was slight at best. Indeed, the very terms “transgender” and “gender identity” were not even used until much later. That a statute enacted in 1964 could be interpreted as prohibiting discrimination on this ground could not possibly accord with its “ordinary public meaning” at that time, he argued. But Gorsuch countered that Alito was talking about legislative intent, not contemporary meaning of the statutory language. As Scalia wrote so often in cases where he rejected evidence of legislative history, when the law is reduced to a written text, it is the text that is the law. Gorsuch even cited a few sources to suggest that some people at or near the time of enactment actually believed that gay or transgender people might have discrimination claims under Title VII.
“Ours is a society of written laws,” Gorsuch wrote. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Reading Alito’s dissenting opinion may induce nausea in the reader, so graphic is his recounting of the horrendously homophobic views of the government and the public towards LGBT people in 1964, but he recites them to make his point that prohibition of discrimination on these grounds could not possibly be a correct textualist interpretation of this language from his perspective. He started his dissent pointedly by saying that the Court was engaged in “legislation,” not interpretation. And he concentrated on shooting holes in Gorsuch’s examples of the situations that led Gorsuch to conclude that discrimination because of homosexuality or transgender identity is, at least in part, sex discrimination.
Alito also wandered far from the central question in the cases, interjecting discussion of various issues likely to arise as a result of the decision, such as hardship for employers with religious objections to homosexuality or transgender identity (such as the employer in the Harris Funeral Homes case), and objections by co-workers to transgender employees using bathrooms and locker rooms. Gorsuch rejoined that these were questions for another day, not presently relevant to decide the appeals before the Court, noting particularly that Harris Funeral Homes had not asked the Court to review the 6th Circuit’s decision rejecting its RFRA defense. Alito was definitely putting down markers for the future cases that the Court may confront.
Kavanaugh makes some of the same points as Alito in his dissenting opinion, but it is notable that he did not join Alito’s dissent. This may be at least in part a generational thing. Gorsuch and Kavanaugh are considerably younger than Alito. By the time they were in college and law school, there were out gay people around and, on a personal level, they undoubtedly both agreed that as a matter of politics it would be appropriate for Congress to ban such discrimination. They just differed on whether the Court could reach the same result through interpretation of the 55-year old law. Kavanaugh noted that three-judge panels of ten circuit courts of appeals had rejected this interpretation. 30 judges out of 30, he wrote, more than once in his opinion, as if the unanimity of an incorrect interpretation somehow turned it into a correct interpretation. Obviously, these judges did not recognize the “elephant in the room”!
For Kavanaugh, this was really a “separation of powers” issue. The question for the Court, he wrote, was “Who decides?” The legislature has the power to make law, while the courts are limited to interpreting the statutes passed by the legislature. Here, agreeing with Alito, he asserted that the Court’s decision was violating the separation of powers. And he disagreed with Gorsuch’s approach to textualism in this case, find it too narrowly focused on individual works, thus losing the context necessary in his view to determine the contemporary “public meaning” of the overall provision in 1964.
However, Kavanaugh concluded his dissent revealing his political, as opposed to interpretive, preferences. “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” he wrote. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s results. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.” Kavanaugh’s dissent largely ignored transgender people. His omission of them from this paragraph is inexplicable in light of the scope of the Court’s opinion and their activist role over the past several decades in seeking protection against discrimination.
Interestingly, Gorsuch premised the case entirely on a strict textualist reading of the statute, avoiding reliance on the alternative theories that the EEOC and some lower courts embraced. One such theory was gender stereotyping, grounded in the Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that an employer who takes an adverse action because an employee fails to comport with stereotypes about women or men has exhibited an impermissible motivation for its actions under Title VII. Another theory, first developed in race discrimination cases, was that discharging a worker because he or she was engaged in an interracial relationship was a form of discrimination because of race. Neither this “associational theory” nor the sex stereotyping theory entered into Gorsuch’s rationale for binding Title VII applicable in Bostock.
The Court’s opinion has the immediate effect of extending protection to LGBT workers in the majority of states that do not ban sexual orientation or gender identity discrimination in their state civil rights laws, but there remain significant gaps in protection. Title VII applies to employers with at least 15 employees, state and local government employees, and federal employees. It does not apply to the uniformed military (so this decision does not directly affect Trump’s transgender service ban), or to religious organizations in their policies on “ministerial employees.” Thus, a substantial portion of the nation’s workforce does not gain any protection from discrimination by this interpretation of Title VII, because a substantial portion of the workforce is employed by smaller businesses or is classified as non-employee contractors. Furthermore, as Gorsuch noted briefly but Alito expounded at length, the Religious Freedom Restoration Act (RFRA) might be interpreted to “supplant” the Title VII protections in particular cases.
The potential application of RFRA is worth noting. Reading Gorsuch’s opinion, one might immediately identify this as a potential “poison pill.” A few years ago, in its Hobby Lobby decision, the Supreme Court suddenly discovered that business corporations could argue that a particular policy mandated by another federal law unduly burdened the employer’s free exercise of religion, and they might thereby escape compliance with the law if the government fell short in showing that its policy was the least restrictive alternative to achieve a compelling government interest. (In Harris Funeral Homes, the 6th Circuit interpreted RFRA in this context and found that the government’s compelling interest in preventing sex discrimination could be achieved only by an outright prohibition, without an exception for business owners who had religious objections.) Although Justice Alito’s opinion for the Court in Hobby Lobby rejected the idea that an employer could make such an argument in defense of a race discrimination claim, Justice Ginsburg pointed out in dissent that Alito’s opinion failed to address the issue of sexual orientation, pointing to cases where businesses claimed a religiously-based right to discriminate against gay people. This is an issue that is hardly settled, and Gorsuch’s reference to the possibility of RFRA as a “super statute” to “supplant” Title VII protections in “appropriate cases” is ominous. Where a case does not involve “ministerial employees,” the full weight of Title VII normally applies to the issue of employment discrimination by religious institutions whether because of race or color, sex or national origin. Shortly, the Court will be ruling on some new cases about the scope of this “ministerial” exception, and may issue a decision that bears on cases in which, for example, gay employees of Catholic educational institutions have been terminated for entering same-sex marriages.
In addition, of course, Title VII only applies to employment decisions. It doesn’t affect decisions by companies about hiring people as non-employee independent contractors, and it doesn’t apply to the myriad other ways that LGBT people encounter discrimination through denial of services, housing, and other privileges of living in our society. This decision does not eliminate the need for enactment of the Equality Act, a bill that would amend numerous provisions of federal law to extend anti-discrimination protection to LGBT people, while amending Title VII to make explicit the coverage of sexual orientation and gender identity. Perhaps most importantly in terms of gap-filling, the Equality Act would add “sex” to the prohibited grounds of discrimination in federal public accommodations law while at the same time expanding the concept of a public accommodation, and would also require federal contractors and funding recipients not to discriminate on these grounds.
Alito’s dissent suggested that the reasoning of the Court’s opinion could protect LGBT people from discrimination under all those other federal statutes that address discrimination because of sex. That would fill a significant part of the gap left by this decision, but not all of it, because, as explained in the previous paragraph, the Civil Rights Act provisions on public accommodations do not forbid sex discrimination and small employers are not covered. Alito appended to his dissent a list of more than 100 federal statutory provisions that he claimed would be affected by this decision, among them Title IX of the Education Amendments Act, under which courts have addressed disputes involving transgender students. This provides a useful “to do” list for the LGBT rights litigation groups, finding cases to firmly establish that the Court’s conclusion in Bostock applies to all those other protections. Closing the gaps through passage of the Equality Act and through passage of state and local laws to cover employers not subject to Title VII must be an ongoing project. There also may be an opening to persuade state courts that they should adopt similar interpretations of the prohibition of sex discrimination under their state laws.
An early test may come as courts confront challenges to a new regulation announced by the Department of Health and Human Services, just days before this decision was announced, reversing an Obama Administration rule under the Affordable Care Act’s antidiscrimination provision and “withdrawing” protection against discrimination under that Act for transgender people. Lawsuits were quickly threatened challenging this regulation. The ACA incorporates by reference the sex discrimination ban in Title IX, so federal courts should read this consistentlyly with Bostock and hold that the regulatory action violates the statute.
Another important point to bear in mind is that coverage of a form of discrimination by the statute does not inevitably lead to a ruling on the merits for the employee. Title VII litigation can be very difficult, and many employees lose their cases early in the process due to procedural roadblocks or, in the case of sex discrimination claims, to the courts’ view that sex may be a “bona fide occupational qualification” in a particular case. When plaintiffs attempt to represent themselves, they may be felled by statutes of limitations, shortcomings in their factual pleadings, or limited resources to investigate the facts and articulate a convincing claim as required by federal civil pleading standards. Furthermore, many employers require employees to execute arbitration agreements when they are hired, so plaintiffs seeking to get their proverbial “day in court” may be disappointed to discover that they are relegated to arguing in private before an arbitrator, in many cases carefully selected by the employer based on his or her “track record” in ruling on employee claims. The road to vindication is not always a smooth one.
The Court’s decision was immediately controversial with certain conservative and religious groups, some of which quickly made spurious claims about how this ruling could interfere with their free exercise and free speech rights, but public opinion polls have consistently shown overwhelming support for outlawing employment discrimination against LGBT people for many years now, so there was no startled outcry by the public at large in the days following the ruling. Those who are cynical about the idea of judging by “neutral principals of law” have often exclaimed that the Supreme Court follows the election returns, so they may characterize this opinion as more political than legal, but the “bipartisan” nature of the line-up of justices would rebut that contention. And, notably, many of the court of appeals decisions that have ruled this way in recent years have also been bipartisan. The opinion, in the matter of fact way that Gorsuch writes about “homosexual” and “transgender” people in the opinion, comes across as impassive by comparison to the florid prose of Kennedy, but it gets the job done.
Kavanaugh’s closing paragraph says that “gays and lesbians” should take pride in this victory, which was hard-earned through decades of political, legal and personal struggle. A brief pause to take pride in this ruling is appropriate, but pushing ahead to fill the remaining gaps in full legal equality is essential. A battle has been won, but not yet the war.
Unfortunately, neither Donald Zarda nor Aimee Stephens lived to learn of their victories. Zarda, who had been fired from a job as a sky-diving instructor, died in a sky-diving accident while his case was pending. Stephens was gravely ill by the time of the oral argument (which she attended, although wheelchair bound), and passed away just weeks before the Court’s decision. Gerald Bostock, however, gave delighted interviews to the press, and was looking forward to the remand back to the district court so that he would get his opportunity to prove that he was the victim of unlawful discrimination.
The Court was flooded with amicus briefs in these cases, too numerous to mention individually here. On October 8, 2019, the Court first heard arguments on the sexual orientation issue, with Pamela S. Karlen representing Bostock and the Estate of Zarda, Jeffrey M. Harris representing the Clayton County and Altitude Express, and Solicitor General Noel J. Francisco presenting the Trump Administration’s position in support of the employers. Next the Court heard arguments on the gender identity issue, with David Cole representing Stephens, John J. Bursch representing Harris Funeral Homes, and again Solicitor General Francisco representing the Trump Administration’s position that gender identity discrimination is not covered by Title VII. The EEOC, the respondent in the case, was not separately represented and did not support the government’s position, evidenced by the government’s briefs, which unusually did not list attorneys from the agency.
Archive for the ‘Legal Issues’ Category
Supreme Court Holds that Federal Law Bans Anti-LGBT Employment Discrimination in Historic 6-3 Ruling
The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
North Carolina Federal Court Refuses to Dismiss Challenge to North Carolina’s Exclusion of Coverage for Gender Transition from State Employee Medical Plan
On March 11, U.S District Judge Loretta C. Biggs denied the state’s motion to dismiss a lawsuit brought by Lambda Legal claiming that the State Health Plan’s categorical exclusion of coverage for treatment sought “in conjunction with proposed gender transformation” or “in connection with sex changes or modifications” violates the Equal Protection Clause, Title IX, and Section 1557 of the Affordable Care Act (ACA). Kadel v. Folwell, 2020 WL 1169271, 2020 U.S. Dist. LEXIS 42586 (M.D.N.C.). The state university defendants had moved to dismiss the Title IX claim, and the State Health Plan defendants had moved to dismiss the Equal Protection and ACA claims. The plaintiffs are all current or former employees of the university defendants, or dependents of university employees, which were all enrolled in the Plan and are the parents of transgender individuals who have been diagnosed with gender dysphoria and are seeking treatment that is categorically excluded from coverage under the Plan.
The plaintiffs jointly allege that since the 1980s the Health Plan covering employees of the state university and their dependents has denied coverage for medically necessary treatment if the need stems from gender dysphoria, as opposed to some other condition. Thus, a cisgender woman’s medically necessary mastectomy would be covered, but a transgender man’s mastectomy for purpose of gender transition would not be covered. With the exception of 2017, this exclusionary policy has been in effect. Third party administrators retained by the employers to administer the plans – Blue Cross Blue Shield of North Carolina (claims administrator) and CBS Caremark (pharmaceuticals) – sell this kind of coverage to other employers, this it would be possible for the state to include such coverage using their current administrators, who are experienced in dealing with such claims.
The statutory causes of action (Title IX and ACA) would require the court to conclude that discrimination because of gender identity is covered under the statutory prohibition of sex discrimination, while the constitutional claim would require a finding that gender identity discrimination claims are actionable under the Equal Protection Clause of the 14th Amendment.
Judge Biggs turned first to the statutory claims in her analysis. She first rejected the state university’s claim that the suit should not be against them, because the state government dictates the content of their employee benefits plans. She found that the defendants “offer” the plan to plaintiffs, and “participate” (or participated) in its availability. “Indeed,” she wrote, “had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds, at this stage, those facts provide a sufficient nexus between the alleged injuries the University Defendants.” Also, responding to the University’s argument that a ruling against them would not redress the plaintiffs’ claims because the defendants are bound by state policy, Biggs wrote that “there are other wahys in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for – and ‘personally would benefit in a tangible way’ from – an award of damages.” Further, she noted, the university defendants might offer supplemental coverage beyond what the state Plan provides. She also rejected defendant’s arguments that since some of the Plaintiffs are not themselves transgender, their injuries are only indirect, because the minor plaintiffs’ “only ties” to the university are through their parents’ employment. Judge Biggs found that the parents were in this case within the class of plaintiffs protected by Title IX.
Turning to the argument that gender identity claims are not cognizable under Title IX, Biggs took note of the fact that the Supreme Court was considering whether Title VII covers gender identity discrimination claims in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, which was argued on October 8, 2019, and had not been decided yet. The defendants argued that this case should be put “on hold” until a Supreme Court ruling was issued. “Because courts in this circuit often look to Title VII when construing like terms in Title IX,” she noted, “the Supreme Court’s decision could potentially impact the viability of the Title IX claim in this case. At this time, however, this Court is left to make its own determination as to whether discrimination ‘on the basis of sex’ encompasses discrimination on the basis of transgender status,” and she noted Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) and M.A.B. v. Board of Education of Talbot City, 286 F. Supp. 3d 704 (D. Md. 2918), in which other district courts also within the 4th Circuit have ruled that such claims are covered by Title IX. Biggs wrote that she “agrees with their reasoning and follows it here.” She also noted that some other district courts in other circuits have faced similar arguments challenging transgender exclusions under state employee benefit plans, and have ruled against the employing states in those cases.
“University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (although State Defendants do),” she wrote. “Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. There is no dispute that ‘a recipient of federal funds may be liable in damages under Title IX only for its own misconduct; the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case.” Biggs held that “at this stage” in the litigation, the plaintiffs’ allegations concerning the university defendants’ role in providing benefits to their employees are sufficient both for standing and for the Title IX claim, and denied the motion to dismiss the Title IX claim.
Turning to the ACA claim, the state defendants argued sovereign immunity. “Section 1557 does not purport to condition a state’s acceptance of federal funding on a waiver of sovereign immunity,” she wrote. “Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (CREA), Congress explicitly stated that a state shall not be immune from suit in federal court ‘for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal assistance.” The 4th Circuit found clear congressional intent to waive the state’s sovereign immunity if they accepted money in programs that prohibit discrimination. The state’s response was that the lack of mention of gender identity or transgender status in Section 1557 shows that North Carolina did not “knowingly” waive its sovereign immunity with respect to discrimination claims on these bases. Disagreeing, Biggs wrote that the state’s potential exposure to such suits should not have been “surprising,” because “courts across the country have acknowledged for decades that sex discrimination can encompass discrimination against transgender plaintiffs. Further, as a general matter, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1999). She asserted that surely the state would agree that Title IX covers sexual harassment claims, even though the word “harassment” does not appear in the statute. “By the same token, Section 1557 need not include the precise phrasing State Defendants demand to provide sufficient notice of a condition of waiver.”
Turning to the constitutional claim, asserted against specific state officials in their official capacity, she found convincing the case law supporting heightened scrutiny for gender identity discrimination claims as being essentially sex discrimination claims. “On its face,” she wrote, “the Exclusion bars coverage for ‘treatment in conjunction with proposed gender transformation’ and ‘sex changes or modifications.’ The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on ‘medical diagnoses, not . . . gender.’ However, the diagnosis at issue – gender dysphoria – only results from a discrepancy between assigned sex and gender identity. In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.” And, quoting from United States v. Virginia, 518 U.S. 515 (1996), she wrote, “A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an ‘exceedingly persuasive justification’ for the classification.” [Thank-you, Justice Ginsburg!] Judge Biggs found that at this stage in the litigation, “State Defendants have failed to satisfy this demanding standard” and, in fact, “the only justification presented thus far is that the Exclusion ‘saves money.’ Under ordinary rational basis review, that could potentially be enough to thwart Plaintiffs’ claim. However, when heightened scrutiny applies, ‘a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens,’” quoting from Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).
Next, Judge Biggs rejected the state defendants’ argument as a ground for dismissal the plaintiffs’ failure to join the Health Plan’s Board of Trustees as a required party, as they would have to vote to make any change in the Plan that would be required to repeal the Exclusion. She found that the state defendants “share primary responsibility for the operation and administration of the Plan” so an award of declaratory, injunctive and monetary remedies against them would “give plaintiffs all the relief they seek.”
Finally, rejecting defendants’ request that the action be stayed pending the Supreme Court’s ruling in Harris Funeral Homes, Judge Biggs pointed out that “the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the ‘harm’ to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.” This is obvious. Since discovery hasn’t begun yet, there is no chance this case would be ready for a motion for summary judgment for many months, and the Supreme Court will likely rule in Harris by the end of June. “Judicial economy is, of course, a consideration,” wrote Biggs. However, this case is in its infancy, and it may be months before a decision issued in Harris – a substantial delay for those seeking to vindicate their civil rights. Given the ongoing harm to Plaintiffs and Defendants’ failure to present ‘clear and convincing circumstances’ outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.”
Thus, pending motions to dismiss are all denied. As of the end of March, the defendants had not petitioned the 4th Circuit for a stay.
Counsel for plaintiffs include Deepika H. Ravi, of Harris, Wiltshire & Grannis LLP, Washington, DC; Meredith T. Brown and Tara L. Borelli, Lambda Legal Defense And Education Fund, Inc., Atlanta, GA; Noah E. Lewis, of Transgender Legal Defense & Education Fund, Inc.; Omar F. Gonzalez-Pagan, Lambda Legal Defense And Education Fund, Inc., New York, NY; and Amy E. Richardson, Wiltshire & Grannis LLP, Raleigh, NC (local counsel).
A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit granted a petition by Adamu Sumaila, a gay man from Ghana, for asylum in the United States, reversing decisions by the Board of Immigration Appeals (BIA) , which had affirmed an Immigration Judge (IJ) decision denying Sumaila’s application. Circuit Judge Luis Felipe Restrepo wrote the opinion in Sumaila v. Attorney General of the United States, 2020 WL 1527070 (3rd Cir., March 31, 2020), which is noteworthy for being outspokenly critical of the administrative decision-making in this case.
Although the IJ did not conclude that Sumaila’s account of what happened to him that caused him to flee Ghana was not credible, the court found that the IJ’s conclusion that Sumaila had not suffered persecution severe enough make him presumptively qualified for asylum was not supported by the record, and furthermore that both the IJ and the BIA had failed to apply the appropriate standard based on 3rd Circuit case law for determining whether Sumaila met the high evidentiary bar of establishing his right to protection under U.S. refugee law.
The court particularly singled out “the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.” Counsel listed on the opinion representing Sumaila were Adrian N. Roe, the instructor, and Paige Beddow and Scott A. Cain, the students, who were admitted pursuant to Third Circuit LAR 46.3. The opinion indicates that the students actually argued the appeal before the court.
Sumaila testified to a harrowing experience, as Judge Restrepo summarizes his testimony in the opinion. He was born and raised in Accra, Ghana’s capital, and “first realized he was gay” at age 14 when he shared an “intimate encounter with another boy,” Inusah, whom he met at school. Over the next twelve years the two boys continued their relationship but kept it hidden because, Sumaila believed, such a relationship was “not acceptable.” “He could not speak to his family about his feelings,” wrote Restrepo, “because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father would kill him.”
“When Sumaila was twenty-six years old, his anxieties materialized into a harsh reality,” wrote the judge. “One morning in January 2016, his father unexpectedly entered Sumaila’s bedroom at the break of dawn and discovered Sumaila having sex with Inusah. His father went into a rage and began shouting that ‘his son was having sex with another man,’ and called on others to ‘come, come and witness what my son is up to!’ He demanded answers from Sumaila and condemned his actions: ‘Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed.’”
“Upon hearing this uproar, a crowd of neighbors gathered at Sumaila’s house, forming a violent mob. Together with his father, the mob began to beat the two young men with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading. Sumaila believed the death threats were real. He remembers being doused with kerosene, and hearing calls to set him on fire. He also saw someone in the mob brandish a ‘cutlass,’ a curved sword with a sharp edge like a machete. Fearing that his life was in danger, he managed to escape and ran naked, hurt and bleeding to a friend’s house about ten minutes away. Sumaila told his friend about the attack and about his sexual relationship with Inusah. His friend, too, became afraid. He worried that they could both be killed if people found out that Sumaila was hiding there.”
Sumaila was “too frightened to call the police” or to “seek medical care,” so Sumaila asked his friend to drive him to the neighboring country of Togo. He didn’t really feel safe there, either. He contacted his friend, who was able to retrieve Sumail’s passport from his home, and Sumaila was able to fly to Ecuador. “Sumaila has heard that his father has publicly disowned him for being gay, that he is still looking for him, and that he intends to kill him if he finds him,” wrote Restrepo, and he “still worries about Inusah, his partner of more than ten years. Despite numerous attempts, he has not been able to reconnect with him since that horrific day.”
Sumaila eventually made his way across the border into the United States without formal entry papers, and filed an application for asylum. “Sumaila claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay,” wrote Restrepo, stating in summary form the basis for Sumaila’s petition.
The IJ, though crediting Sumaila’s story, decided that it was just a single incident, that Sumaila was not severely enough injured to seek medical care, that he did not report it to the police (thus not giving the government a chance to take action against his father or the mob for assaulting him), and consequently that he did not prove the level of persecution necessary to trigger the presumption that he would be subjected to persecution if he were sent back to Ghana. The IJ also asserted that Sumaila could avoid persecution on being sent back to Ghana by relocating to another part of the country and keeping his homosexuality hidden. The BIA affirmed this opinion.
The court of appeals panel evidently found this treatment of Sumaila’s asylum case by both the IJ and the BIA to be rather astonishing, especially in light of Ghana’s criminal law treating homosexual conduct as a crime subject to up to three years in prison, and State Department and other non-governmental human rights orgagnizations’ reports about the violence gay people experience in Ghana, including in prison.
The court noted the extensive circuit-level precedent recognizing that persecution on account of sexual orientation can qualify as a ground for asylum under U.S. law, in opinions dating back several decades to the early years of the Clinton Administration. “In rejecting Sumaila’s claim, however,” wrote the judge, “the IJ found that Sumaila had ‘not established that he suffered mistreatment on account of his sexual orientation that rises to the level of persecution.’ The BIA affirmed that finding without expressly reviewing the alleged motive of Sumaila’s tormentors. We construe the IJ’s and the BIA’s truncated decisions as rejecting both Sumaila’s claim that he was targeted ‘on account of’ his sexual orientation and that he suffered persecution.”
The court reached the contrary conclusion. “Here, there can be no serious dispute that the attack and threats Sumaila suffered were motivated by his sexual orientation,” asserted Restrepo. “Sumaila credibly testified that the mob’s violent and menacing behavior was instigated by his father’s outrage at discovering him having sex with another man and offered evidence that his father explicitly connected this violent response to his disapproval of Sumaila’s “homosexuality.’ Others in the mob wanted to report Sumaila to the police, further indicating that they were reacting to his same-sex relationship since that is the only conduct that could have conceivably incriminated Sumaila under Ghanaian law. Sumaila thus has demonstrated that he was targeted on account of his membership in a statutorily protected group.”
As to whether Sumaila met the test of “persecution” for purposes of U.S. asylum law, the court found that its past precedents supported his claim that a credible threat to his life and liberty because he is gay was sufficient to meet the test. “Crediting Sumaila’s testimony as the BIA did, we know that a violent mob beat Sumaila with makeshift weapons and dragged him across the floor from his room to a courtyard, causing him to bleed from his mouth and suffer injuries to his head and back. Sumaila was then threatened with death by burning or beheading, at the same time that he was being doused with kerosene and exposed to a cutlass. In combination with these violent acts of intimidation and his injuries, the death threats were sufficiently ‘concrete and menacing’ to transform this incident from a ‘simple beating’ into outright persecution.” The court also pointed out that, contrary to the government’s argument, the fact that these threats were “unfulfilled” – i.e., that Sumaila managed to escape – did not make them any less significant, in light of the report that his father continued to threaten his life if he returned to Ghana.
“Neither the IJ nor the BIA addressed the significance of these threats under the dispositive case law available at that time, and that omission derailed their analysis,” concluded the court. “The IJ focused exclusively on the ‘beating,’ finding that this incident was not extreme enough to constitute persecution because Sumaila had only been attacked once and he ‘did not require medical treatment.’” This was a mischaracterization of the record, the court pointed out, because he credibly testified to serious injuries, stating that he was afraid to seek medical assistance because of the hostility toward gay people.
“The BIA agreed that this ‘isolated’ incident did not rise to the level of persecution because Sumaila ‘was not so injured that he required medical attention and he was able to run to his friend’s house, which was some distance away[.]’ That analysis was based on a misunderstanding of the law and must be reversed. . . . It is debatable whether the record contains enough evidence to ascertain the full extent of Sumaila’s injuries, but our decision need not hinge on the severity of those injuries because this case involves so much more. . . . In short, because the IJ and the BIA accepted Sumaila’s testimony as true but then proceeded to misstate and ignore certain relevant aspects of that testimony, and because they committed legal error by finding that a single beating without severe physical injury to Sumaila was dispositive, their determination that his experience did not rise to the level of past persecution must be overturned.”
The court also rejected the government’s argument that Sumaila’s failure to report this incident to the police was “fatal” to his claim. In order to gain asylum, a petitioner has to show that he was subject to persecution by the government or by private forces that the government was unwilling or unable to control. In this case, the government argued that Sumaila’s father and the angry mob were not government officials, and Sumaila never sought to get the government involved in dealing with his situation. But for good reason, wrote the court, pointing to the extensive documentation presented by Sumaila’s counsel about the situation confronted by gay people in Ghana.
“Here, the record is replete with evidence that Ghanaian law deprives gay men such as Sumaila of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous,” wrote Restrepo. “Ghana criminalizes same-sex male relationships under the guise of ‘unnatural carnal knowledge,’ defined to include ‘sexual intercourse with a person in an unnatural manner or with an animal.’ The text of this law – equating same-sex male relationships to sex with an animal – is already a clear indication of the government’s official position on gay men. Although the law classifies consensual sex between men as a ‘misdemeanor,’ the offense is punishable by up to three years in prison. Prosecution and disproportionate punishment based on any of the INA’s protected grounds, including sexual orientation, are cognizable forms of persecution, ‘even if the law is generally applicable,’ and perhaps significantly more, are sufficiently severe to constitute ‘persecution’ under this Circuit’s standard. . . . Had Sumaila reported the beating or threats, he would have outed himself and his partner to the police and, on that basis, he could have been arrested, prosecuted and incarcerated, compounding the persecution he had already suffered. This fact alone is compelling, if not dispositive, evidence that Sumaila had no meaningful recourse against his father’s and the mob’s homophobic violence. At best, seeking help from the police would have been counterproductive.”
“The record also shows that the Ghanaian government is unable or unwilling to protect LGBTI persons from other forms of mistreatment,” Restrepo continued. “For instance, Ghanaian law does not prohibit anti-gay discrimination even though there is a well-documented hostility towards the LGBTI community throughout the country. According to the State Department country report, ‘societal discrimination against [LGBTI] individuals’ rises to the level of a ‘human rights problem,’ and discrimination against LGBTI individuals in education and employment is ‘widespread.’ The report cites data from Ghana’s Commission on Human Rights and Administrative Justice, showing that ‘men who have sex with men’ are among the groups of people who have reported incidents of ‘stigma and discrimination,’ including breaches of protected health information, blackmail/extortion, harassment/threats, and violence or physical abuse. Amnesty International’s country report confirms that LGBTI individuals face ‘discrimination, violence and instances of blackmail in the wider community.’ Sumaila submitted other evidence echoing these accounts, including a letter from his friend stating that ‘authorities in Ghana have minimal concern for gay rights and politicians are always promising electorates of eradicating gays,’ as well as a news report evincing anti-gay political rhetoric ahead of the 2016 general elections.”
This evidence went not only to implicating the government as a persecuting actor, but also to the issue of Sumaila’s reasonable fear of persecution if he were returned to Ghana by the U.S. as a known homosexual person. Besides the matter of his father’s continuing threat to find and kill him, there was ample evidence in the record that the only way he would be able to survive in Ghana would be to hide his homosexuality, and asylum law treats that as an important factor.
The IJ and BIA hung their conclusions, in part, on a report (unverified) that there was actually a prosecution going on in Ghana of somebody charged with assaulting a gay man, but there is nothing in the record about how that turned out. “Considering that homophobic violence goes largely unreported because LGBTI persons fear harassment and extortion at the hands of police officers,” wrote the court, “one case in which anti-gay violence was supposedly prosecuted is hardly probative of the government’s ability or willingness to protect gay men. Because the IJ and the BIA disregarded, mischaracterized and understated evidence favorable to Sumaila, including relevant portions of his testimony and the country reports, ‘the BIA succeeded in reaching a conclusion not supported by substantial evidence such that we are compelled to reach a conclusion to the contrary.’”
Having concluded that Sumaila had proved that he was subjected to past persecution, the next step in the court’s analysis, focusing on the question whether he had a reasonable fear of persecution if returned to Ghana, would focus on whether the government had rebutted the presumption that he would face persecution in the future. While ordinarily at this point the case would be remanded to the BIA, and subsequently to the IJ, to allow the government a chance to attempt to rebut the presumption, “remand for this purpose is not necessary here, because even without applying the presumption and corresponding burden-shifting framework, the IJ’s and the BIA’s finding that Sumaila does not have a well-founded fear of future persecution cannot stand on this record,” wrote Retrepo.
“The IJ found that, although Sumaila ‘had]credibly testified that he subjectively fears persecution if returned to Ghana,’ he failed to show that ‘a reasonable person would fear the same.’ There is no dispute that Sumaila’s subjective fear is genuine. Thus, we focus on whether Sumaila’s fear of future persecution is objectively reasonable.” The court found the IJ’s conclusions on this point, affirmed by the BIA , to be “not supported by substantial evidence, because they are based on mischaracterizations, unreasonable inferences, and an incomplete assessment of the record.”
“Up until the attack, Sumaila’s ability to avoid this sort of homophobic abuse hinged on his ability to dissemble his sexual orientation and keep his sexual relationship with his partner hidden,” wrote the court. “No major leap is required to conclude that other gay men like Sumaila are escaping persecution by hiding or suppressing their sexuality as well. Indeed, anti-gay laws such as Ghana’s criminalization of sex between men are intended to stigmatize and punish, in effect, to suppress the expression of gay identity and sexuality in society. Secreting his gay identity is not a workable solution for Sumaila. Now that he has been publicly outed by his father, the risk of future persecution at the hands of uncontrolled private actors has increased, as evidenced by his father’s success at enlisting neighbors willing to assault and kill Sumaila because he is gay.”
“Sumaila is also at a higher risk of being prosecuted and punished, i.e., persecuted by the state, after being outed as a gay man. The Government responds that any future risk of arrest is not persecution because it would be ‘arbitrary.’ That argument misses the mark. The issue is not arbitrary arrest but state-sanctioned prosecution and punishment on account of a statutorily protected status. In no other context would prosecution and disproportionate punishment based on any of the INA’s protected grounds be anything other than persecution. If Sumaila were facing these risks because of his religious beliefs or political opinion, we would not hesitate to find an objectively reasonable fear of future persecution in these circumstances.”
“In short,” wrote the court, “we hold that Sumaila’s objective experience with anti-gay violence, the ongoing threats to his life, Ghana’s criminalization of same-sex male relationships and the widespread unchecked discrimination against LGBTI persons, combine to satisfy the requirement that his fear of persecution be objectively reasonable.”
Finally, the court addressed the IJ’s bizarre assertion that Sumaila could avoid persecution by staying away from Accra, his hometown, or by hiding his homosexuality. “The IJ found that there was no indication that Sumaila ‘would not be safe from his family if he relocated to another part of Ghana.’ That finding is based on unreasonable presumptions and a misunderstanding or mischaracterization of relevant evidence. Sumaila has reason to believe his father is still looking for him. Nothing in the record suggests that Sumaila’s father cannot travel freely around the country in search of Sumaila. Considering that Ghana’s criminalization of same-sex male relationships is country-wide, and that ‘widespread’ homophobia and anti-gay abuse is a ‘human rights problem,’ relocation is not an effective option for escaping persecution. Nor is it a reasonable solution,” the court continued. “Relocation is not reasonable if it requires a person to ‘live in hiding.’ To avoid persecution now that he has been outed, Sumaila would have to return to hiding and suppressing his identity and sexuality as a gay man. Tellingly, the IJ’s observation, no matter how ill-advised, that Sumaila could avoid persecution and live a ‘full life’ if he kept ‘his homosexuality a secret,’ was a tacit admission that suppressing his identity and sexuality as a gay man is the only option Sumaila has to stay safe in Ghana. The notion that one can live a ‘full life’ while being forced to hide or suppress a core component of one’s identity is an oxymoron.”
“Because Sumaila suffered past persecution and has a well-founded fear of future persecution on account of his sexual orientation and identity as a gay man, he qualifies as a refugee under the INA. Therefore, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion,” concluded the court.
The court supplemented its opinion with a footnote critical of the IJ’s performance in this case. “In case the BIA decides to remand to the IJ for any reason, we caution the IJ to exercise greater sensitivity when processing Sumaila’s application, as we are troubled by some of the IJ’s comments and questions,” wrote Restrepo. “In addition to suggesting that Sumaila would be better off hiding his identity as a gay man, the IJ questioned Sumaila in explicit detail about his sexual relations with Inusah, going so far as to ask about sexual positions. It is unclear why that line of questioning would be relevant to Sumaila’s claim, but to the extent those questions were intended to establish or test his self-identification as a gay man, they were off base and inappropriate. We urge IJs to heed sensible questioning techniques for all applicants, including LGBTI applicants.”
Judge Restrepo, a native of Colombia who became a U.S. citizen in 1993, was appointed to the district court and a few years later to the 3rd Circuit Court of Appeals by President Barack Obama.
Alaska Federal Court Says Employer’s Denial of Insurance Coverage for Sex-Reassignment Surgery Violates Federal Law
A federal district court in Anchorage, Alaska, has ruled that a public employer’s health benefits plan violates Title VII of the Civil Rights Act of 1964 because it categorically denies to employees, whether male or female, coverage for the surgical procedures used to effect gender transition. According to the March 6 opinion by Senior U.S. District Judge H. Russel Holland, the employer’s exclusion of this coverage is “discriminatory on its face and is direct evidence of sex discrimination.” The ruling does not require all employers to provide coverage for gender reassignment surgery, but it requires that they not discriminate because of an employee’s sex in deciding which procedures are covered.
Judge Holland’s decision has potentially wide application because Title VII applies to all employers with 15 or more employees, including both businesses and government employers at the federal, state and local levels. Although a trial court ruling is not a precedent binding on other courts, Judge Holland’s explanation for his ruling may provide a persuasive precedent both for courts confronting similar claims and for employers deciding how to respond to employees seeking such coverage under their employee benefit plans.
Lambda Legal filed suit on behalf of Jennifer Fletcher, who works as a legislative librarian for the State of Alaska. Fletcher is enrolled in AlaskaCare, a self-funded employee health care plan that is administered by Aetna Life Insurance Company. The Plan “provides benefits for medical services and procedures that are medically necessary and not otherwise excluded from the Plan,” according to the State’s written responses to discovery questions posed by Fletcher’s attorney from Lambda Legal, Tara L. Borelli.
During discovery in this case, the State conceded that for “some” transgender individuals, surgical procedures for gender transition may be “medically necessary,” but the plan formally excludes performance of the procedures in question for that purpose. The procedures in question are covered for employees if they are necessary to address a medical issue other than gender transition. None of the procedures at issue in this case are used solely in connection with gender transition.
Fletcher was diagnosed with gender dysphoria in 2014 and began the process of social, legal, and medical transition under professional care, starting hormone therapy that year. By 2016, she and her health care provider agreed that gender transition-related surgery was necessary for her transition. In her complaint, Fletcher claimed that such treatment was “essential” for her “well-being.”
In November 2016, Fletcher contacted Aetna to discuss coverage for her surgical treatment, but was told that the Plan did not cover it, and would not in 2017. Although the Plan has since been modified to allow coverage for some aspects of gender transition, hormones and counseling, the express exclusion of surgery continues.
Fletcher’s request for coverage spurred the State to study the cost of eliminating this exclusion, for which it engaged a consultant, who advised that the annual increase in claims on the Plan would be $60,000. Although there was internal discussion about this within the State government, no further action was taken to change the Plan to cover surgical transition procedures.
Because AlaskaCare would not cover her surgery, Fletcher obtained her surgery in Thailand, where the procedure is less expensive than if it were performed without insurance coverage in the Unites States. She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the Plan’s exclusion violates Title VII’s ban on discrimination in “terms and conditions of employment” because of an individual’s sex. The State’s simplistic response was that because the Plan excludes coverage for any surgical procedure for purposes of gender transition, whether the employee involved was identified as male or female at birth, there was no discrimination “because of sex.” The EEOC rejected this argument, and issued a finding that the State’s policy violates Title VII. On May 17, 2019, the EEOC notified Fletcher that its attempt to “conciliate in this matter” with the State was unsuccessful, authorizing her to file a lawsuit.
Fletcher’s complaint alleged that the State discriminated against her because of her “sex” which, she alleged, includes “discrimination on the basis of gender nonconformity, gender identity, transgender status, and gender transition.” This list covered all the bases of different theories that federal courts have used at various times to evaluate Title VII claims by transgender plaintiffs. After discovery, Fletcher moved for summary judgment on the question whether the Plan exclusion violates Title VII, while the State moved for summary judgment to dismiss the entire lawsuit on the merits.
As it turned out, the list of alternative coverage theories in Fletcher’s complaint was unnecessary, because Judge Holland concluded that the exclusion was, on its face, discrimination “because of sex.”He based this conclusion on the State’s concession that all the surgical procedures involved in Fletcher’s transition would be covered if they were performed for reasons other than gender transition.
Thus, if Fletcher was identified as female at birth but needed the vaginoplasty procedure for some reason other than transition, she would be covered, and indeed that procedure is employed to deal with some medical conditions experienced by women. Because she was identified as male at birth, however, coverage for the the procedure was denied, because its only purpose for somebody identified as male at birth would be for gender transition. To Judge Holland, this was clearly an exclusion specifically because of the sex of the employee, and one had to go no further into theories of gender nonconformity, gender identity or transgender status in order to bring her claim within the coverage of the statute.
Under Title VII, any “disparate treatment” between men and women regarding a particular term or benefit of employment is illegal unless it can be justified as a “bona fide occupational qualification” (BFOQ) that is “reasonably necessary to the normal operation or essence of an employer’s business.” In this case, Holland commented, “Defendant has not argued, nor could it, that there is any BFOQ for the disparate treatment at issue here. As such, plaintiff is entitled to summary judgment that defendant violated her rights under Title VII.”
While granting Fletcher’s motion, the court simultaneously denied the State’s summary judgment motion. Still to be determined is the remedy for the violation. As Fletcher has already had the surgical treatment, the court needs to decide what to award for compensation for violation of the statute. In light of the court’s decision on the merits of Fletcher’s claim, it is likely that the parties will negotiate a settlement on damages.
Judge Holland was appointed to the District Court by President Ronald Reagan and took senior status in 2001.
A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity. Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).
The decision was made by a panel comprised entirely of judges appointed by Democratic presidents. Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.
The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room. This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.
In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima. Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”
The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex. The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.
The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female. The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”
In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.
The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima. “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.” They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.
Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.
The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.
The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause. They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.
Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.” He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”
He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX. Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation. The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation. These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.
The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents. “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”
The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds. The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs. “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement. The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.
The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students. Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.
This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year. However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step. If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.
Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court. In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.
The court received nine amicus briefs, none of which supported the plaintiffs’ position! The American Civil Liberties was permitted to argue on behalf of the rights of transgender students. All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights. The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees. An expanded panel of eleven would necessarily include some of Trump’s appointees.
9th Circuit Denies En Banc Review in Idaho Transgender Prisoner Case in a Sharp Political Divide That Foreshadows Supreme Court Review
Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo. The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights. On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing. In the 9th Circuit, an en banc panel would have eleven judges. Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.
This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition. This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court. Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.
The denial of review was by no means unanimous. It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving. Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain. None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition. Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees. (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)
It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term. There are no 9th Circuit vacancies for him to fill at present.
Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges. In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”
The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment. The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual. The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled. Edmo’s expert witnesses, both involved with devising the most recent edition of the WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.
Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure. The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place. They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.
By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated. The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.
Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts. O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context. He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.
He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.
In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.” Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.
O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition. He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.
He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.
Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year. Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.
Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today. Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.
Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.” “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use. He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts. The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.
In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning. Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.” For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated. Thus, this is not “unusual.” And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession. They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”
Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community. Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision. Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures. Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.
Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment. He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation. “Deliberate indifference” requires a higher showing by the plaintiff. Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.
Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis. He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference. Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”
Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling. They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference. Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.
On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.
Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.
Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.
The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.
Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.
Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.
Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).
A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children. Judge Frank Easterbrook wrote the opinion for the court.
The timing of this appeal made the outcome unsurprising. In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates. See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016). Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples. Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.
In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit. But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date. Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.
Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate. Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.” Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.
Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook. “In its view, birth certificates in Indiana follow biology rather than marital status. The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”
By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor. Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.
That the argument is complete nonsense certainly did not help the state’s case. Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement. “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote. “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing. Others may name their husbands for social reasons, no matter what the form tells them to do. Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.” This is the presumption that the husband of a married woman who gives birth is the father of her child. “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot. Nothing about the birth worksheet changes that rule.”
The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate. Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage. But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?
The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold. Yet again, the state’s insistence on perpetuating the former legal regime was rejected.
Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers? Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother. One set of plaintiffs in this suit shows this. Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor. Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother. There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”
“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” Because the current statute does that, he continued, “its operation was properly enjoined.”
However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.” For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.” Easterbrook asserted that neither of these provisions violated the constitution. “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.
“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded. “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”
Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum. The third judge on the panel, Diane Sykes, was appointed by George W. Bush. Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents. The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage. After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.
Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms. Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.
Virginia Court Denies Annulment to Woman Who Claims Her Marriage to Transgender Spouse was Induced by Fraud
This is one of those “truth is stranger than fiction” stories. In Sun v. Riley, 2019 Va. Cir. LEXIS 1180 (Virginia – Fairfax County Cir. Ct., Dec. 30, 2019), Circuit Judge David A. Oblon denied a petition by Renee Sun to annul her marriage to Joseph Michael Riley, either on the ground that it was not consummated or that Riley had defrauded her by not disclosing an intention to transition to female gender. The judge pointed out that Sun could alternatively seek a divorce.
Sun and Riley married on November 19, 2017. On March 29, 2019, Riley “underwent a surgical procedure consistent with a male to female gender reassignment,” wrote Judge Oblon. “Sun testified she learned of this, not from Riley, but from medical records she found in their bedroom. To the contrary, Riley testified he discussed it with Sun before the procedure. Sun testified he only told her he was obtaining a vasectomy, and not a bilateral orchiectomy.”
(Translation: A vasectomy is a procedure to block the route by which sperm generated by the testicles can be ejaculated through the penis, and is one method of birth control. A bilateral orchiectomy is a procedure by which the testicles are removed and may be a prelude to further procedures of penectomy and construction of a vagina.)
Obviously, there is a story behind this, much contested by the parties to this case. “Prior to the marriage,” relates Judge Oblon, “Riley was ‘unsure of [his] gender,” according to his testimony. “He engaged in hormone testing and took female hormones on May 16, 2018, roughly si months before marriage.” He testified that he had told Sun about this “in passing,” by saying that “he was a girl and like to ‘dress up,’” and he claimed that Sun was “supportive.” In her testimony, she recalled Riley “joking” about being a girl and liking to dress up, and she admitted he mentioned having taken hormones but explained that it was to treat “in-grown hair” and assured her that it would not turn him female, because “a doctor oversaw the treatment and the dosage was low.” Sun testified that she did not know Riley was transitioning to become female, they had no discussions about gender reassignment, and she thought their mutual intention was to have children. Riley claimed in his testimony that they discussed the fact that he did not want to have children.
“They never engaged in coitus once married,” wrote Oblon. Riley claimed he had approached Sun twice to engage in sex, but she “rebuffed him” and he “did not wish to force her,” so he desisted and their marriage did not include sex. “He denied being impotent before marriage, and on either of his two post-marriage attempts at coitus.” Sun claimed not to recall these incidents, but testified that she never approached Riley about having sex. “She did not testify that she ever asked him for coitus or even asked why they remained celibate.” This situation continued from November 19, 2017 until after Riley’s surgical procedure on March 29, 2019, after which Sun’s discovery of the medical records and subsequent questioning of Riley led her to file her petition for annulment.
“When a marriage is annulled,” wrote the judge, “the law treats the marriage as a nullity. It never happened because it was either void ab initio (such as in the case of bigamy) or it is voidable (such as in the case of marriage to one lacking capacity to consent). “The biggest effect is that annulments are divorced from the benefits of Virginia’s equitable distribution and spousal support laws,” as a result of which “parties seeking annulment must be held to their high evidentiary burdens” – in this case, the petitioner must meet a “clear and convincing evidence standard.” By contrast, Virginia, like all other states, now has a no-fault divorce regime, and divorce is the alternative to annulment for terminating a marriage. But Sun did not file for divorce, seeking instead to have the marriage declared to have never been validly formed.
She advanced two grounds. First, she pointed out, they never had sex, so the marriage had not been “consummated.” Judge Oblon rejected this ground, pointing out that the statute governing annulment – Va. Code. Sec. 20-89.1 – lists grounds for annulment, but lack of sexual consummation is not among them. “Noticeably absent is ‘coitus,’ ‘sexual intercourse,’ or any synonymous term,” he wrote, pointing out as well that “coitus is nowhere included in the solemnization procedures” of the marriage law, and the word “consummated” as used in the law does not refer to sexual intercourse.
However, a marriage that was induced by fraud could be a ground for annulment under Va. Code Ann. Sec. 20-89.1(A). The party charging fraud must prove by clear and convincing evidence “(1) a false representation, (2) of a material fact, (3) made intentionally an knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” The court noted a prior Virginia case in which an annulment had been granted on fraud grounds, explaining: “The court did not hold that consummation was itself a condition precedent to a valid marriage. Rather, it held that the fraud was misleading a person to marry with the intent to deny marital relations, not the lack of marital relations by itself.”
Weighing the credibility of testimony by Sun and by Riley, the court concluded that Riley was more believable than Sun on key points. “In the present case,” he wrote, “Riley testified he entered the marriage with the intent to consummate it. He claimed he tried twice with the ability to perform, was twice rebuffed, and that he never tried again. The Court believed his testimony.”
Sun claimed not to recall these advances, but did not deny that Riley tried to get her to have sex. “Tellingly,” wrote Oblon, “she admitted she never approached him for marital relations despite her stated goal of having children. She did not even testify that she ever initiated a conversation about why they would not have sex. This is very different from the language she used in her Petition. There, she wrote, ‘the parties have not engaged in any sexual relations or sexual contact due to his vehemently refusing to do so.’ The Court finds as fact her ore tenus testimony to be more credible than her Petition and concludes that Riley did not ‘vehemently’ refuse sexual relations; rather, he tried and was rebuffed, and it was Sun who did not want these relations.” Thus, Sun did not show by clear and convincing evidence that Riley defrauded her.
The court rejected Sun’s alternative argument that Riley’s failure to disclose before they got married any intention on his part to transition was itself fraud per se. She claimed she believed she was marry a man who wanted to be a man and have children with her, not a person in the process of becoming a woman, and pointed to various events, including her claim that Riley concealed from the steps undertaken towards transition by misrepresenting the procedure he was getting as a vasectomy. In response, “Riley implicitly argued that it is not as simple as Sun argues. He testified he never wanted to be transgender, he wanted to have marital relations with Sun, and his feelings changed over time despite his wishes.”
Neither party presented expert witnesses, leaving the Court to try to figure out what was going on in this case. In the absence of expert testimony, the court resorted to “burdens of proof and weight of evidence under the lens of its own understanding and of common sense. So viewed, Sun has not proved by clear and convincing evidence that Riley defrauded her into marrying him.” While Oblon conceded that Sun’s feeling of being defrauded was understandable, “she did not prove it.” And Oblon embraced the view that “people are not static; they change over time – some in ways more dramatic than others.”
“Must a person ‘unsure of his gender’ before marriage, who now believes he was ‘not supposed to be male,’ have told this to a future spouse to avoid defrauding the spouse?” he asked. “the Court can conceived of circumstances where failure to so inform – or to affirmatively hide these feelings – could amount to fraud in the inducement. However, on the present record, the Court finds Sun failed to prove by clear and convincing evidence that, at the time of her marriage, Riley defrauded her by knowing he did not wish to engage in and perpetuate a marriage between a man and a woman with her. The Court believed Riley that he entered the marriage believing he would be in a lifelong relationship with Sun. It belived him that he tried to have marital relations with her. It believed him that he was unsure of his own sexuality, but that he wanted to be married to Sun as a male.”
In effect, the court seems to have believed that Riley, not having accepted that he was transgender and not wanting to be transgendered, intended to marry Sun and live in a man-and-woman marriage. It didn’t work out that way, but she did not prove that he intended to defraud her by marrying, and the statute places the burden of proof on the party seeking the annulment. Furthermore, the court seems to fault Sun, stating: “Counterfactually, the evidence showed that Sun knew – pre-marriage – that he joked about being a girl and dressing up. She knew he had taken female hormones. She rebuffed his sexual advances and did not make advances of her own or question him as to their celibate status. If one were to apply an ex post analysis to this case, one could make a case that Sun should have known Riley was on a trajectory toward becoming a female someday.” So much for the fraud argument. . . .
Thus the Petition for annulment was denied. The opinion as reported by LEXIS indicated that some text was “redacted by the court.” The opinion lists Danielle A. Quinn of Dycio & Biggs, PC, Fairfax, as counsel for Sun. Riley represented himself.