Art Leonard Observations

Federal Court Orders New York to Allow Religious Adoption Agency to Deny Services to Same-Sex and Unmarried Couples

September 8, 2022

Granting summary judgment to New Hope Family Services, a non-governmental agency located in Syracuse, U.S. District Judge Mae A. D’Agostino ruled on September 6 that the state’s Office of Children and Family Services (OCFS) violated New Hope’s freedom of speech under the First Amendment by giving it an ultimatum either to comply with OCFS’s non-discrimination regulation or close down their adoption services. The regulation, adopted in 2013, prohibits discrimination against applicants for adoption services based, among other grounds, on their marital status, sexual orientation, or gender identity or expression.

Under New York’s adoption law, only agencies authorized by OCFS can provide adoption services, which include screening prospective adoptive parents, taking temporary custody of children in need of adoption or foster care placement, matching children with parents, evaluating the placement and making recommendations to the court, since adoptions must be approved by a judge to become final.

New Hope was founded by a Christian minister, originally under the name Evangelical Family Service, in 1965, when the state issued a two-year certificate of incorporation, which was made “perpetual” in 1967. From its beginnings, New Hope’s Christian mission focused on placing children with traditional heterosexual married couples, which then were the only adoptions permitted under the state’s adoption law. Over time, the adoption law was amended to allow adoptions by single adults, unmarried couples, and same-sex couples, but New Hope adhered to its policy, offering to refer applicants to other agencies if New Hope’s religious policies precluded providing them with services.

New Hope’s policy became an issue for the OCFS in 2018, when it undertook a review of all adoption agencies that were operating under “perpetual authorization” to determine whether they were operating in compliance with state law. An OCFS agent made a site visit and congratulated New Hope on the quality of its services, but after reviewing New Hope’s policies and procedures manual, the agent called New Hope and said that its referral policy violated the agency’s anti-discrimination regulation. When New Hope indicated that it would adhere to its religious beliefs, OCFS issued an ultimatum: agree to stop discriminating or lose their authorization and have to end their adoption services.

New Hope responded by suing OCFS on December 6, 2018, alleging a violation of its constitutional rights under the 1^st and 14^th Amendments, and seeking a preliminary injunction against OCFS while the case was being decided. Judge D’Agostino, who was appointed by President Barack Obama, granted a motion by OCFS to dismiss the case, making the request for a preliminary injunction moot. OCFS appealed to the 2^nd Circuit Court of Appeals, narrowing its claim to free exercise of religion, freedom of speech, and freedom of association, while dropping its 14^th Amendment claim. The Court of Appeals panel reversed the dismissal and sent the case back to Judge D’Agostino, with direction to reconsider her refusal to grant a preliminary injunction.

The 2^nd Circuit opinion, issued on July 21, 2020, found that all three 1^st Amendment claims were sufficiently plausible to state a valid claim. The opinion by Circuit Judge Reena Raggi, an appointee of President George W. Bush, gave an extensive analysis that provided a roadmap for Judge D’Agostino to follow in consider the merits of the case. She issued a preliminary injunction on October 5, 2020, based only on the free exercise and free speech claims, finding that New Hope was likely to prevail on those claims, when considered in light of the 2^nd Circuit’s analysis.

After concluding discovery, New Hope and OCFS filed cross-motions for summary judgment. In her September 6 ruling, Judge D’Agostino focused solely on the freedom of speech claim.

New Hope argued this as a “compelled speech” case, contending that OCFS was demanding that New Hope convey a message that unmarried and same-sex couples were suitable adoptive parents and that it was in the best interest of children to be placed with them for adoption. The 2^nd Circuit ruling virtually dictated that Judge D’Agostino accept this argument. OCFS was contending that this was a “government speech” case, arguing that the government delegated its functions respecting adoption to private and public agencies, and that when the agency certified adoptive parents and recommended placements and court approval of adoptions, they were in effect speaking for the government and applying evaluative criteria prescribed by statutes and regulations. The 2^nd Circuit rejected that argument, as did Judge D’Agostino, who was bound to follow the 2^nd Circuit’s direction, even though she had accepted OCFS’s defense when originally dismissing the case. The 2^nd Circuit had noted that the criteria were very general and that authorized agencies were called upon to make independent assessments and exercise judgment, so their conclusions could not be attributed to the government.

In free speech cases, the government’s burden is to show that it has a compelling interest and that its policies are narrowly tailored to avoid abridging free speech more than was necessary to achieve its interest. New Hope argued that its “recusal and referral” policy appropriately achieved the government’s compelling interest in finding homes for children in need of adoption and allowing unmarried couples and same-sex couples to adopt. Although New Hope would not provide services to unmarried couples and same-sex couples, it always offered to refer them to agencies that would take their applications, determine their suitability, match them with children, and facilitate the process through judicial approval.

The court found that there was no evidence that any unmarried or same-sex couple had been unable to adopt due to New Hope’s policy, and that shutting down New Hope’s adoption business would undermine the government’s compelling interest in maximizing placements for adoptive children, by removing an agency that had managed thousands of adoptions in its half century of operation.

In light of the 2^nd Circuit’s decision last year, it is unlikely that an appeal by the state would be successful, and even less so in light of the Supreme Court’s decision last year in Fulton v City of Philadelphia, which ruled in favor of Catholic Social Services in its battle with the city’s child welfare agency. The 2^nd Circuit’s decision had gone into some detail in finding evidence of “hostility” to New Hope’s religious beliefs in the language used by OCSF officials. The 2^nd Circuit had also questioned the scope of OCSF’s non-discrimination regulation, which the court considered to have gone beyond the language of the adoption law.

At the time the law was amended to add “same-sex couples” to the list of those who could adopt, religious groups had unsuccessfully asked for an amendment exempting them from having to provide adoption services to same-sex couples, but they were assured by Governor David Paterson that the amendment was “permissive” only – expanding the list of people who could adopt – but not a mandate that would require any agency to change its policies. The 2^nd Circuit commented that the regulation went beyond the statute by applying a non-discrimination policy to religious organizations rather than accommodating them to avoid free exercise and freedom of speech issues.

Judge D’Agostino explained briefly that she was ruling only on the free speech claim because it was unnecessary to decide the religious free exercise claim in order to rule in New Hope’s favor and issue the requested injunction.

Alliance Defending Freedom is representing New Hope. When the case was pending before the 2^nd Circuit, several amicus briefs were filed in each side, including opposing briefs from different groups of religious and non-religious organizations, and a civil rights brief by Lambda Legal, the ACLU, and Americans United for Separation of Church and State.

Legal Issues | Tagged accommodation of religious beliefs, adoption by same-sex couples, adoption by single people, adoption by unmarrired couples, anti-discrimination regulations governing adoption services, Circuit Judge Reena Raggi, District Judge Mae D'Agostino, Governor David Paterson, New Hope Family Services, New Hope v. Poole, New York adoption laws, New York Office of Children and Family Services, religious adoption agencies, religious exemption | Comment

Washington Law Against Conversion Therapy Survives Constitutional Attack

September 7, 2022

A three-judge panel of the U.S. Court of Appeals for the 9^th Circuit, which included the first member of that bench appointed by President Donald Trump, unanimously ruled in Tingley v. Ferguson, 2022 WL 4076121 (September 6) that a circuit precedent from 2014, Pickup v. Brown, 740 F. 3d 1208, which rejected a constitutional challenge to California’s ban on conversion therapy for minors, is still a binding precedent in the 9^th Circuit, thus affirming U.S. District Judge Robert J. Bryan’s decision (557 F.Supp.3d 1131 [W.D. Wash., 2021] to dismiss a challenge to a virtually identical law enacted in 2018 by the state of Washington.

The only real point of suspense in the case was what effect the panel might give to the U.S. Supreme Court’s decision in 2018 in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361. Three-judge panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9^th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court. The 2018 decision is usually referred to as the NIFLA case.

NIFLA operates a “pregnancy clinic” that counsels its clients not to resort to abortion. It challenged a California statute that required licensed pregnancy clinics to inform clients that California law provides free or low-cost family planning services, including abortion. NIFLA claimed that this requirement violated its free speech rights, compelling it to speak the state’s message rather than its own. The 9^th Circuit rejected that challenge, finding that the state could regulate “professional speech” as a distinct category of speech enjoying less protection under the 1^st Amendment than other categories, such as political or artistic speech.

The Supreme Court reversed with an opinion by Justice Clarence Thomas, stating that “professional speech” was not less protected by the 1^st Amendment than other forms of speech, and specifically criticizing decisions by the 3^rd and 9^th Circuits that had rejected free speech challenges to state laws designating performance of conversion therapy by licensed counselors as professional misconduct for which they could incur professional discipline. Both of those cases had referred to “professional speech” as being less protected than other forms of speech.

In this new challenge to Washington’s law, licensed counselor Brian Tingley, who describes himself as a “Christian counselor” who attempts to get children to feel comfortable with their biological sex and to minimize homosexual attractions, sued with the representation of Alliance Defending Freedom, claiming that after the NIFLA decision, the 9^th Circuit’s prior rulings on conversion therapy were no longer valid precedents.

District Judge Bryan disagreed, finding that the prior rulings had not depended solely on the “professional speech” theory. Instead, the district court considered a regulation of health care practice to be concerned with conduct that incidentally involved speech, in which case the state could regulate the conduct to achieve an important governmental interest. hat interest would be to protect minors from the adverse psychological and emotional effects of conversion therapy, which have been well-documented by numerous studies and led most professional associations in the health care field to condemn the practice.

The 9^th Circuit panel agreed with Judge Bryan that the NIFLA opinion had not effectively overruled Pickup v. Brown or a subsequent case from California, Walsh v. Brown, that the Washington statute was virtually identical with the California statute that had been upheld, and that circuit precedent thus dictated that Tingley’s case be dismissed.

Judge Ronald M. Gould, writing for the panel, added a section to the opinion, speaking only for himself and Judge Kim McLane Wardlaw, identifying an “additional reason” for reaching the conclusion that the Washington law is constitutional. “The Supreme Court has recognized that laws regulating categories of speech belonging to a ‘long tradition’ of restriction are subject to lesser scrutiny.” Looking back at the NIFLA ruling, he noted that Justice Thomas wrote that in the NIFLA case there was not “persuasive evidence of a long (if hereto unrecognized) tradition” of exempting speech by professionals from First Amendment protection. However, Gould pointed out, there was a long tradition of the states regulating licensed health care practice.

“There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders,” he wrote, citing U.S. Supreme Court cases from 1889 and 1898 to make his point. “And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs.” He also noted that the Supreme Court had in the past “relied upon the positions of the professional organizations Tingley criticizes, even when those positions have changed over time.”

Gould commented that “the evidence presented shows some difference in opinion about the efficacy and harm of conversion therapy, but the ‘preponderating opinion’ in the medical communicate is against its use.”

“That doctors prescribed whiskey in 1922, and thought of homosexuality as a disease in 1962, does not mean that we stop trusting the consensus of the medical community in 2022 or allow the individual desires of patients to overcome the government’s power to regulate medical treatments.” And he pointed out that invalidating the conversion therapy ban because the “therapy” consisted of speech “would endanger other regulations on the practice of medicine where speech is part of the treatment.” For example, he noted a Washington statute that prohibits doctors from promoting “for personal gain any unnecessary inefficacious drug, device, treatment, procedure or service.” Such promotion would normally be done through speech. Other sections of the law would subject to discipline the offering “to cure or treat diseases by a secret method,” and prohibit all advertising by health care professionals that is “false, fraudulent, or misleading.”

He also noted that the law was narrowly focused on licensed professionals, exempted unlicensed religious counselors, and clearly did not apply outside the confines of professional-client treatment relationships. Counselors are free to state their views about conversion therapy, both to their clients and publicly, but are just forbidden to provide conversion therapy to clients.

As to Tingley’s separate claim that the law violates his free exercise of religion, the court concluded that this was a religiously-neutral law of general applicability, and thus under existing Supreme Court precedent Tingley could not claim an exemption from complying based on his religious beliefs. The court also rejected Tingley’s argument that the law was unconstitutionally vague, finding that past decisions had rejected the argument that “sexual orientation” and “gender identity” are terms whose meaning is uncertain. “’Sexual orientation’ and ‘gender identity’ have common meanings that are clear to a reasonable person,” wrote Judge Gould, “let alone a licensed mental health provider.”

Judge Mark Bennett, the Trump appointee on the panel, joined the majority opinion, but only to the extent that it found the question of constitutionality to be governed by the 9^th Circuit precedents. “Respectfully,” he wrote, “I believe that we should not hypothesize with dicta when our conclusion is commanded by binding precedent.” Judges Gould and Wardlaw were appointed by President Bill Clinton.

Numerous amicus briefs were filed in this case, reflecting the heavy investment by the faith-based community in attempting to protect the practice of conversion therapy, especially by religiously-motivated licensed counselors, and the commitment by LGBTQ and other civil liberties groups to protect minors from a dangerous and exploitative practice.

Alliance Defending Freedom is likely to seek en banc review and, ultimately, to asking the Supreme Court to take up this case. Judge Gould recognized in his opinion for the court that this ruling opens up a split with a recent opinion by the 11^th Circuit, Otto v. Boca Raton, 981 F.3d 854 (2020), which struck down a municipal conversion therapy ban on the theory that conversion therapy that is limited to speech enjoys full 1^st Amendment protection, rejecting the argument that it was a regulation of professional conduct only incidentally burdening speech. The 11^th Circuit took a different view of the impact of the Supreme Court’s NIFLA ruling, so it is possible that this case will provide ADF with the vehicle it is seeking to get the issue back before the Supreme Court.

Legal Issues | Tagged 9th Circuit, Alliance Defending Freedom ADF, anti-gay conversion therapy, anti-transgender conversion therapy, Brian Tingley, conversion therapy, conversion therapy of minors, gender dysphoria, gender identity, Judge Kim McLane Wardlaw, Judge Mark J. Bennett, Judge Robert J. Bryan, Judge Ronald M. Gould, licensed health care professionals, sexual orientation, U.S. Court of Appeals, Washington conversion therapy ban | Comment

Federal Appeals Court Says People with Gender Dysphoria are Protected Against Discrimination by Federal Disability Statutes

August 17, 2022

A three-judge panel of the Richmond, Virginia, based U.S. Court of Appeals for the 4^th Circuit ruled on August 16 that people with a gender dysphoria diagnosis are considered to have a “disability” that entitles them to protection against discrimination under two federal statutes, the Americans with Disabilities Act (ADA) and the Vocational Rehabilitation Act. The 2-1 decision is the first in which a federal appeals court has found such individuals to be entitled to protection under those two laws. Williams v. Kincaid, 2022 WL 3364824, 2022 U.S. App. LEXIS 22728.

The Rehabilitation Act, passed in 1973, forbids discrimination in federal programs, by large federal contractors, or in programs or activities that receive federal financial assistance, against qualified individuals with a disability. The ADA, passed in 1990, forbids discrimination by employers, by public entities (including public transportation), by public accommodations and commercial facilities, or in telecommunications, against qualified individuals with a disability. Both statutes cover physical and mental disabilities.

Transgender people generally won protection against discrimination by employers under Title VII of the Civil Rights Act of 1964 when the Supreme Court ruled in Bostock v. Clayton County (2020) that the ban on discrimination because of sex in Title VII must be interpreted to include discrimination because of transgender status. However, that ruling applies only to employment by entities with at least fifteen employees. When Congress amended the civil rights bill in 1964 to add “sex” to the list of prohibited grounds for discrimination, it did not also add “sex” to other provisions of the civil rights bill – most significantly the public accommodations provision – so until the 4^th Circuit’s August 16 ruling, there was no federal protection against discrimination in public accommodations and services for transgender people.

When the ADA was pending in Congress, Senators Jesse Helms and William Armstrong, outspoken opponents of LGBT rights, criticized the measure as a “gay rights bill,” arguing that “homosexuals,” “transvestites” and “transsexuals” could claim that they had a mental disability and sue for discrimination under the proposed ADA. To prevent protection for people whom they disapproved, they successfully proposed an amendment that excludes from the definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders” as well as “compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.” Federal trial courts, until relatively recently, have interpreted this provision to preclude protection under the ADA or the Rehabilitation Act for transgender individuals.

In Kesha Williams v. Stacey Kincaid, the August 16 ruling, the trial court relied on the ADA exclusion language to dismiss claims by a transgender former inmate of a Virginia jail that she had been subjected to unlawful disability discrimination while incarcerated, because of her gender dysphoria. The trial judge, Claude M. Hilton of the Eastern District of Virginia, concluded that Congress intended to withhold protection from transgender people, which would include those suffering from gender dysphoria. He also rejected gross negligence claims against two of the three named defendants, the sheriff in charge of the jail and two jail employees.

Two of the three circuit judges disagreed with Judge Hilton. Pointing to the Bostock decision, in which Justice Neil Gorsuch wrote that statutes should be interpreted in light of the common meaning of their language at the time the legislation was enacted, Circuit Judge Diana Gribbon Motz observed that the term “gender dysphoria” was not in use in 1990, and that the American Psychiatric Association, in the 2013 edition of its Diagnostic and Statistical Manual (DSM-5), had removed “gender identity disorders” as a listed diagnostic term, and had adopted the new term of “gender dysphoria.” The court reasoned that this change was not just a case of renaming the same thing, but rather of recognizing a new “independent diagnosis” for a specific condition. This resulted from “advances in medical understanding.”

“The very fact of revision suggests a meaningful difference,” wrote the judge, “and the contrast between the definitions of the two terms – gender identity disorder and gender dysphoria – confirms that these revisions are not just semantic.” Consequently, a majority of the panel ruled that a person with gender dysphoria – which the defendants did not dispute was an actual disability that was otherwise within the statutory definition – did not come within the exclusionary provision. As an alternative argument, they accepted Williams’ reliance on some scientific articles suggesting that gender identity has a physical basis and thus might be described as a gender identity disorder that results does from a physical impairment.

The court also pointed out that a 2008 amendment to the ADA instructed that “courts construe the ADA in favor of maximum protection for those with disabilities, (so) we could not adopt an unnecessarily restrictive reading of the ADA.” And, added Judge Motz, reversing the district court’s dismissal based on this interpretation of the statute also avoided the need to rule on Williams’ contention that she had been denied Equal Protection of the law in violation of the 14^th Amendment. Courts generally will consider whether ruling against the plaintiff would raise constitutional issues in determining how to interpret a statute.

The court also rejected District Judge Hilton’s conclusion that claims against two prison employees should be dismissed on statute of limitation grounds because they were only named in an amended complaint that was filed after the two-year statute of limitations had run. The court also reversed Judge Hilton’s dismissal of a gross negligence claim, finding, contrary to the trial judge, that Williams’ factual allegations were sufficient to meet the requirements of Virginia law for such a claim against the sheriff and one of the jail employees.

Dissenting, Judge A. Marvin Quattlebaum focused on similarities in the definitions of “gender identity disorders” and “gender identity” and argued that even if Williams was correct about “changes in understanding” by the medical profession since 1990, “linguistic drift cannot alter the meaning of words in the ACA when it was enacted.” He insisted that as of 1990, “the meaning of gender identity disorders included gender dysphoria as alleged by Williams.” He also disagreed with the majority of the panel on the gross negligence issue as it pertained to Sheriff Stacey Kincaid, the lead defendant.

The 4^th Circuit panel decision establishes a precedent for the federal courts in Maryland, Virginia, and North and South Carolina. However, it is possible that Judge Quattlebaum will call for a vote by the full circuit bench on whether to rehear the case “en banc,” or that the defendants could move for such a vote. A vote by a majority of the fourteen active judges of the Circuit court to grant en banc review would vacate the panel decision and require reconsideration by the full 4^th Circuit bench. (There is one vacancy that Biden has not yet filled.) At present, eight of the fourteen judges are Democratic appointees, including Judge Motz (Bill Clinton) and Judge Pamela Harris (Barack Obama), the other member of the majority. Dissenting Judge Quattlebaum was appointed by Donald Trump.

The defendants could also apply directly to the Supreme Court for review of this decision. The Supreme Court usually does not grant review unless there is a split among circuit courts about the legal issues in the case. The 4^th Circuit is rule on the question whether people with gender dysphoria are protected under the ADA and the Rehabilitation Act, so there is no circuit split.

Legal Issues | Tagged ADA exclusions, Americans With Disabilities Act, definition of a disability, disability discrimination, gender dysphoria, gender dysphoria as a disability under the ADA, gender dysphoria as a disability under the Rehabilitation Act, gender identity disorders, gross negligence, Judge A. Marvin Quattlebaum, Judge Diana Gribbon Motz, Judge Pamela Harris, Kesha Williams, Stacey Kincaid, transgender inmates, US Court of Appeals for the 4th Circuit, Vocational Rehabilitation Act, Williams v. Kincaid | Comment

Biden Administration Proposes New Anti-Discrimination Regulations Restoring Protection for LGBTQ Individuals Under the Affordable Care Act

July 27, 2022

The Biden Administration’s Department of Health and Human Services (HHS) proposed new regulations on July 25 to replace the Trump Administration’s regulations issued in 2020 under the anti-discrimination provision of the Affordable Care Act (ACA), Section 1557. The proposed regulations will not become effective until after a public comment period and subsequent possible revisions in light of the comments received, as required under the Administrative Procedure Act (APA). The proposed regulations build upon regulations adopted by the Obama Administration in 2016, but they propose new coverage that is even more extensive than those regulations provided. The Trump Administration regulations sharply cut back on the Obama regulations, including removing protection against discrimination because of gender identity and exempting insurance companies from the anti-discrimination requirements.

The ACA was adopted on a very close party-line vote in 2010, shortly before Republicans gained control of Congress as a result of the mid-term elections during President Obama’s first term. Because of the complexities of the lengthy and detailed statute, it took several years until the Obama Administration finished finalizing regulations in 2016. One of the most controversial elements of the 2016 regulations was the interpretation of the anti-discrimination provision to ban gender identity discrimination by entities subject to Section 1557, although the regulation was ambiguous about whether this meant that health insurers were required to cover gender-affirming surgery in order to meet the coverage requirements posed by the ACA. Litigation against the regulation quickly resulted in a preliminary injunction and it never actually went into effect.

The Trump Administration was determined to remove gender identity from the list of prohibited grounds of discrimination, but it took until the spring of 2020 for HHS to published a new proposed regulation to displace the 2016 regulation. This proposed regulation was published shortly before the Supreme Court ruled in June 2016 in Bostock v. Clayton County that the ban on employment discrimination because of sex under Title VII of the Civil Rights Act of 1964 extended to claims of discrimination because of sexual orientation or gender identity. The explanatory material accompanying the Trump Administration’s proposed regulation asserted that the inclusion of gender identity in the 2016 regulation was not supported by Section 1557, but noted that a ruling in Bostock was pending. However, after the Bostock decision was announced, the Trump Administration insisted that its reasoning applied only to Title VII, not to Section 1557.

Section 1557 does not directly list forbidden grounds of discrimination under the ACA. Instead, it provides that “an individual shall not, on the grounds prohibited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title.”

Title VI of the Civil Rights Act refers to discrimination because of race, Title IX of the Education Amendments refers to discrimination on account of sex, the Age Discrimination Act’s purpose is obvious from its title, and Section 794 of title 29 prohibits discrimination because of disability. Thus, Section 1557 prohibits discrimination on the basis of race, sex, age, or disability to the extent such discrimination is prohibited under those statutes.

The Trump Administration contended that because the prohibition of sex discrimination under Section 1557 was derived from Title IX of the Education Amendments rather than from Title VII of the Civil Rights Act, the Bostock decision did not apply to it, which was consistent with the Trump Administration’s position that Bostock did not apply to any federal sex discrimination laws except Title VII, and then only in a limited way. The Department of Education under Trump also maintained that Title IX does not ban educational institutions receiving federal funds from discriminating based on sexual orientation or gender identity, and took that position in litigation under Title IX. Most, but not all, federal courts that have considered these questions have rejected the Trump Administration’s position. Thus, although the Education Department under Secretary Betsy Devos stopped processing sexual orientation or gender identity claims by students against educational institutions, individual plaintiffs were filing suit and achieving court victories addressing such discrimination during the Trump Administration, although some conservative judges (especially those appointed by Trump) were rejecting such claims.

When the ACA was enacted in 2010, some federal courts had already begun to recognize gender identity discrimination claims under Title VII, but it was only afterwards that some courts began to recognize gender identity discrimination claims under Title IX as well. The Obama Administration took an affirmative position on that issue a few years after the ACA was enacted by sending a letter of interest to the U.S. District Court in Virginia that was considering a lawsuit by Gavin Grimm, a transgender boy whose high school refused to let him use the boys’ restroom facilities, so it was not surprising that HHS’s proposed regulations in 2016 took the position that Section 1557 prohibited gender identity discrimination by health care providers and insurers who were subject to Section 1557. (Gavin Grimm eventually won his case in the U.S. Court of Appeals for the 4^th Circuit, whose ruling the Supreme Court refused to review.)

The Equal Employment Opportunity Commission (EEOC) began recognizing gender identity discrimination claims under Title VII in 2012, ruling on a discrimination claim by Mia Macy, a transgender woman, who was denied a job by the Bureau of Alcohol, Tobacco, Firearms and Explosives, a unit of the U.S. Department of Justice. In 2015, the EEOC first recognized a sexual orientation discrimination claim against the Department of Transportation in a case brought by David Baldwin, a gay air traffic controller. By the time the Supreme Court ruled in Bostock in 2020, several federal circuit courts had overruled old precedents to hold that sexual orientation and gender identity claims could be brought under Title VII, although the circuit courts were not unanimous on the issue.

The Trump Administration went ahead and published its proposed 2020 regulation, withdrawing coverage of gender identity claims, despite the Supreme Court’s ruling in Bostock. Although technically Bostock was decided only under Title VII, Justice Neil Gorsuch’s opinion for the Supreme Court employed reasoning that was obviously applicable to all sex discrimination laws. He proclaimed that it was impossible to discriminate “because of” a person’s sexual orientation or gender identity without taking account of their biological sex, because the very definitions of those concepts necessarily referred to the biological sex of the individual. He exclaimed that it would be impossible to describe the concepts of “sexual orientation” or “gender identity” without mentioning sex, so discrimination on those grounds necessarily involved taking account of an individual’s sex. Because Title VII prohibited discriminating “because of” a person’s sex, taking account of a person’s sex in deciding to discharge them (which was the issue in the cases from three circuit courts that the Supreme Court was deciding in Bostock) potentially violated the statute. Title VII does allow an employer to discriminate based on sex when sex is a “bona fide occupational qualification” for the job in question, but the Supreme Court has ruled that this is a narrow exception to the general rule, and it would not have applied to any of the cases then pending before the Supreme Court in Bostock.

On January 20, 2021, President Biden issued an Executive Order directing federal agencies that enforce sex discrimination laws to follow the reasoning of the Bostock decision, and to issue new guidelines or regulations as necessary to prevent discrimination against LGBTQ people. A few months later, the Education Department and the Health and Human Services Department had given notice that they would follow the Bostock ruling in enforcing Title IX and Section 1557, and the EEOC has never waivered from its prior rulings under Title VII in the Macy and Baldwin cases. However, litigation challenging these positions has been filed in federal courts, and preliminary injunctions issued to block enforcement actions by the agencies while the cases are pending. The 2016 regulation adopted by the Obama Administration under Section 1557 was not enforced by the Trump Administration, which had informed the courts that it would not be enforced while they worked on proposing a new regulation to replace it.

Removing gender identity protection was not the only change effected by the Trump Administration’s 2020 regulation. It also adopted a narrow interpretation of Section 1557, under which it asserted that insurance companies were not covered by the anti-discrimination requirement because they did not deliver health care directly. It asserted that various exceptions contained in Title IX, for example for religious educational institutions, should be interpreted to carry over as exceptions under Section 1557. It asserted that Section 1557 applied only to entities covered by the ACA, giving a narrow reading to the somewhat ambiguous part of Section 1557 dealing with its scope of application to all health care programs that receive federal money. The 2020 regulation also repealed various procedural requirements that the 2016 regulation imposed on employers and insurance companies to designate individuals charged with enforcing the anti-discrimination requirements, undertaking training of staff, giving formal notice to individuals about their rights, and setting up formal procedures for dealing with discrimination complaints.

Under the regulations proposed by the Biden Administration, the existing regulations will be amended to explicitly list sexual orientation and gender identity wherever discrimination because of sex is addressed, the Trump Administration’s narrow definition of covered entities and Title IX exception is replaced by a broad reading including insurance companies and going beyond programs established under the ACA, the procedural requirements imposed by the Obama Administration’s 2016 regulation are reinstated, and for the first time HHS is taking the position that Section 1557 applies to Medicare Part B, the health insurance program covering Americans age 65 and older. It already applies to Medicaid, as well as the health insurance programs adopted by state and local governments for their employees. The regulation does acknowledge, however, that its application is subject to the requirements of the Religious Freedom Restoration Act, which provides an affirmative defense against enforcement by the government that burdens the free exercise of religion, so it is questionable whether the requirement that insurance plans cover gender-affirming treatment will ultimately extend to health care institutions operated by those religious bodies which reject such treatments.

The proposed regulations run to more than 300 very detailed pages in the pdf file released by HHS, which helps to explain why it took 18 months for the Department to come up with this comprehensive proposal. It will definitely attract litigation, most likely from the same states and associations that attacked the 2016 regulations. If such litigation eventually rises to the level of the Supreme Court, it will test the willingness of the Court to treat Bostock as a broadly binding precedent. That case was decided by a 6-3 vote, with Chief Justice John Roberts joining Justice Gorsuch’s opinion, which was also supported by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. If Roberts and Gorsuch do not back away from the logical extension of Bostock’s reasoning, there would still be at least a 5-4 majority assuming that Justice Ketanji Brown Jackson, the Court’s newest member, and Justices Sotomayor and Kagan would also vote to reaffirm and apply Bostock to Title IX and thus by extension to Section 1557.

Legal Issues | Tagged Affordable Care Act, anti-discrimination law, anti-gay discrimination, anti-transgender discrimination, Biden Administration, Bostock v. Clayton Country, gender-affirming care, health insurance requirements under ACA, LGBTQ discrimination in health care, Obama Administration, Proposed Regulations, Section 1557 of Affordable Care Act, Title IX, Title VII, Trump Administration | Comment

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

May 2, 2022

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies. With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought. Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration. Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities. In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022). U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26. The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping. The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas. There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him. They could not have picked a better judge for their case. Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations. LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder. (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.) Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through. The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019. This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes. He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo. No matter, as jurisdiction to sue the federal government lies in every federal district court. They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion. The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock. The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views. The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly. This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557. Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation. They are seeking declaratory and injunctive relief at this point. None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable). They note that the 5^th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question. The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX. Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims. Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute. Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.” Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls. Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers. This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5^th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557). Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts. The Supreme Court has already declined opportunities to address the question, but a 5^th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin. Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

Legal Issues | Tagged Affordable Care Act, America First Legal Foundation, Bostock v. Clayton County, Civil Rights Act of 1964, Civil Rights Restoration Act of 1991, discrimination because of sex, discrimination on the basis of sex, Donald J. Trump, forum shopping, gender identity discrimination, gender-affirming care, Gene Hamilton, Joseph R Biden, Justice Neil Gorsuch, Mark Meadows, Matthew Whitaker, Neese v. Becerra, Northern District of Texas, sex reassignment surgery, sexual orientation discrimination, Stephen L. Miller, Title IX, Title IX of the Education Amendments of 1972, Title VII, transgender minors, U.S. Court of Appeals for the 5th Circuit, U.S. District Court, U.S. District Judge Matthew Kacsmaryk, U.S. Supreme Court | Comment

Plaintiffs Win Summary Judgment Against Former Rowan County (Kentucky) Clerk Kim Davis in Marriage License Case

March 28, 2022

On March 18 U.S. District Court Judge David Bunning ruled that Kim Davis, who was the Rowan County (Kentucky) Clerk in 2015 when the Supreme Court ruled that same-sex couples had a right to marry, see Obergefell v. Hodges, 576 U.S. 644, had violated the plaintiff same-sex couples’ constitutional rights by refusing to issue them marriage licenses. Ermold v. Davis, 2022 WL 830606, 2022 U.S. Dist. LEXIS 48411 (E.D. Ky.).

Two of the couples who were denied licenses by Davis’s office in July 2015 and repeatedly thereafter –David Ermold and David Moore, and James Yates and Will Smith – and who had sued Davis to get their licenses, then went on to sue her for damages for violation of their constitutional rights. Both couples were eventually able to get their marriage licenses after Judge Bunning jailed Davis for contempt of court when she defied his order to issue the licenses and a deputy clerk in the office issued the licenses as part of a deal to get Davis released.

Davis objected to same-sex marriage on religious grounds, and although she understood that her duty under the law was to issue the licenses, as she had been advised in a letter that Governor Steven Beshear had distributed to all the county clerks in Kentucky, and as she was also advised by the county attorney, she believed that under the 1^st Amendment’s Free Exercise Clause she had a right to obey her conscience rather than the law.

A major sticking point for Davis was that the county clerk’s signature was required by a Kentucky statute to be on the marriage license, and she did not want this permanent and visible record of her acquiescence to exist. She had asked the legislature to amend the marriage law to eliminate that requirement, but it did not act in time to forestall the problems that arose when same-sex couples showed up at her office seeking licenses. She became a darling of the right-wing and a media sensation. David Ermold, a college professor, decided to challenge her for re-election. He lost the Democratic primary contest, but the successful Democratic candidate, Elwood Caudill, went on to defeat Davis for re-election. Eventually, the Kentucky legislature amended the law to dispense with the requirement of the county clerk’s signature on marriage licenses.

The U.S. Court of Appeals for the 6^th Circuit rejected Davis’s argument that she enjoyed qualified immunity from being sued for damages, see Ermold v. Davis, 936 F.3d 429 (6^th Cir. 2019), rehearing en banc denied, cert. denied, 141 S. Ct. 3 (Oct. 5, 2020), while holding that she could be sued only in her personal capacity, not her official capacity. The Supreme Court’s certiorari denial brought a “Statement” by Justice Clarence Thomas, joined by Justice Samuel Alito, harping on how the Obergefell ruling, from which they had dissented, had resulted in Davis being “one of the first victims of this Court’s cavalier treatment of religion” in Obergefell, and concluded that “this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.” Although speaking only for themselves, it is likely that President Trump’s three appointees to the Court would be sympathetic to the views expressed by Thomas and Alito, a clear warning that the Obergefell ruling is not beyond attack as “fixed precedent” of the Court. The Court has continued to revisit religious liberty claims in the wake of Obergefell, and has granted a certiorari petition for next Term to confront the issue again. The Court has yet to rule directly on the merits that a person or entity objecting to same-sex marriages must recognize or cater to them.

District Judge Bunning ruled on March 18 on motions for summary judgment by all the parties. He granted summary judgment to the plaintiff couples and denied Davis’s motion for summary judgment. However, he found that the question of what damages Davis should have to pay to the plaintiffs for her denial of their constitutional rights was a factual issue to be decided by a jury, so the case is not over yet.

Judge Bunning was appointed to the District Court in 2002 by President George W. Bush. The American Bar Association had rated him as “unqualified” at that time, finding that at age 35 he lacked the necessary experience to be a federal trial judge, but he was unanimously confirmed by the Senate. He had initially been somewhat hostile to the damage lawsuits, dismissing the complaints as moot since the legislature had changed the law in such a way that further refusals to issue licenses were unlikely, but the 6^th Circuit reversed the dismissals, see 855 F. 3d 715 (6^th Cir. 2017), and sent the case back for a ruling on the merits.

Early in the litigation against Davis, Judge Bunning wrote: “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

In his March 18 decision, he decisively rejected Davis’s argument that she should enjoy qualified immunity from having to pay damages, because the Supreme Court had established in Obergefell that the gay couples had a constitutional right to get the marriage licenses, and Davis’s testimony showed that “she knowingly violated the law.” Elected officials enjoy “qualified immunity” from personal liability for paying damages for their actions in office unless they are violating a clearly established right of which they had reason to know. “Any argument that Davis made a mistake, instead of a conscious decision to violate the law, is not only contrary to the record, but also borders on incredulous,” wrote Judge Bunning.

The gay couples had not sought to have Judge Bunning rule on the amount of damages in their summary judgment motion, acknowledging that they had yet to provide the necessary evidence to document their injuries. Nominal damages (a small symbolic amount) would always be available for a constitutional violation, but their claims are more wide-ranging. They seek compensatory and punitive damages, pre and post judgment interest (for litigation that dates back to 2015), and costs and attorneys’ fees, which are authorized under federal law for successful plaintiffs who sue to vindicate their constitutional rights. The compensatory damage claims are for “mental anguish, emotional distress, humiliation and reputation damages.” Testimony by therapists would be provided to the jury to gauge the extent of the emotional damages.

In addition, Bunning wrote, “Based on the record before the Court, it seems plausible that Davis could have acted with reckless indifference to the constitutional rights of Plaintiffs,” which means they could also win punitive damages, intended to punish Davis for violating her oath of office in way likely to cause injury to the plaintiffs.

The plaintiffs are represented by Rene B. Heinrich of Newport, Kentucky, and William Kash Stilz, Jr., of Covington, Kentucky. Davis is represented by Liberty Counsel and attorneys affiliated with that organization, which virtually guarantees that this ruling will be appealed to the 6^th Circuit again, and that an ultimate ruling on the merits will have Davis knocking on the Supreme Court’s door again.

Legal Issues | Comment

Indiana Court of Appeals Divides Three Ways on Gender Marker Change for Transgender Teen

September 8, 2021

In Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), decided earlier this year, a divided panel of the Indiana Court of Appeals ruled that a parent’s petition to change the name and gender marker of their transgender minor child could be approved, despite the lack of explicit statutory authority, if the court determined that the change was in the best interest of the child, with Judge Rudolph R. Pyle, III, dissenting on the ground of lack of legislative authority for the court’s action. On August 30, in In re Change of Name and Gender of H.S., 2021 Ind. App. LEXIS 267, 2021 WL 385266 (Ind. Ct. App.), the same court again split three ways in a case where parents petitioned to change the name and gender marker of a minor, in this case their 15-year-old transgender son. Affirming a ruling by Allen Superior Court Judge Andrew S. Williams, they held that Judge Williams’s grant of the name change but denial of the gender marker change was not clearly erroneous. Observing that the legislature had not responded to their earlier ruling by addressing the question of the standard for evaluating such a petition, Judge L. Mark Bailey’s majority opinion found that Judge Williams did not err because the parents did not present sufficient testimony to show that granting the gender marker change in the teen’s birth certificate would be in the best interest of the minor, H.S.

The parents offered in evidence a letter from H.S.’s treating physician stating that H.S.’s sex “has been changed by medical procedure from female to male” and that H.S.’s birth certificate should be changed accordingly. They also offered a letter from a licensed mental health counselor who stated that H.S. “was initially seen at my office in January of 2020, for issues related to gender identity, and that he “was determined to be exhibiting symptoms consistent with a diagnosis of Gender Dysphoria,” had “presented male at all of his [counseling] sessions,” and “began testosterone therapy in August of 2020” and “shared about his desire to change his name and gender marker,” which the counselor believed to be “important to his overall wellbeing.” The petition was filed on September 16, 2020, by the Mother under oath, accompanied by a signed parental consent by both Mother and Father. Judge Williams accepted the letters into evidence, and conducted a hearing on March 4, 2021, at which both parents and H.S. testified. Judge Williams then ordered that the case be sealed from public access.

On April 16, 2021, Williams issued an Order granting the name change and denying the gender marker change. He purported to apply the “best interest of the child” analysis as dictated by the Court of Appeals’ decision in Matter of A.B., and focused on “the mental and physical health of the child” as “likely the most significant factor.” As such, he pointed to “the absence of expert testimony or authenticated documents,” wrote Judge Bailey, quoting Williams’s finding “the lack of competent evidence with regard to this factor to be dispositive.” Williams found that Mother, the petitioner, failed to establish that it was in the best interest of H.S. to have the gender marker changed. This seems odd on its face. H.S. would legally be known by a male name but would have a birth certificate indicating a female sex.

On appeal, Mother argued that the court should presume that when parents petition for a gender marker change for their child, it is in the best interest of the child to grant it, not dependent upon a specific medical intervention. Judge Bailey disagreed, while noting that no Indiana statute makes expert testimony or medical records a requirement for a gender marker change. After reviewing the history of the Indiana courts’ treatment of the issue of name and gender marker changes for transgender petitioners, he pointed out that the permissive standard followed for adults does not apply to minors. “It is necessary to examine the statutory provision for alteration to a birth certificate with the objective of neither invading the legislative domain nor that of a fit parent,” he wrote. “The generic statutory provision has served as a vehicle with enough flexibility to permit its ready application to the gender marker choice of a competent adult. Nevertheless, the statutory flexibility applicable to adults has reached a point of inelasticity where the issue concerns children. And assuming the statute has application when a parent seeks a change of gender marker for a child, its streamlined (essentially unquestioned) application to a child would ignore the State’s interest in the child’s wellbeing.”

“Clearly, the totality of the child’s medical history is highly relevant,” wrote Bailey. “But here the parents decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure. Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence. Under these circumstances, I cannot say that the trial court misapplied the law.”

Under the logic of Bailey’s decision, despite the lack of any such statutory requirement, parents petitioning for a gender marker change for their child should be prepared to have testimony under oath from the child’s physician and mental health counselors, and to submit medical records in evidence. This decision does not make a gender marker change unavailable, but it probably makes it considerably more expensive to obtain such an Order. The parents in this case could go back to square one with a new petition; otherwise, H.S. will have to wait until his majority to file a petition on his own as an adulty, under the more “elastic” standards pertaining. Unless, of course, this case is appealed and the Indiana Supreme Court adopts the dissenter’s view of the record while approving Matter of A.B.

Judge Pyle concurred in the result, reiterating his dissenting view from Matter of A.B. that the court did not have authority to order a gender marker change for a minor in the absence of legislative authorization to do so. The biggest risk of an appeal by the Petitioners in this case is that the Indiana Supreme Court might agree with Judge Pyle and overrule Matter of A.B., putting gender marker changes out of reach for minors in Indiana in the absence of legislative action (which one speculates would not be readily forthcoming). As of the end of August, we found no record of an appeal filed in Matter of A.B., which was decided in February 2021.

Judge Terry A. Crone dissented at length, finding that the evidence introduced by the parents was sufficient to perform the analysis required by Matter of A.B. and to conclude that granting the gender marker change was in the best interest of H.S. He rejected Judge Bailey’s dismissive characterization of the letters accepted into evidence by H.S.’s physician and counselor, and found that Judge Williams, in passages not acknowledged by Judge Bailey, had indulged in stereotyping and generalizations with no factual support in the record.

“In its order,” wrote Judge Crone, “the trial court was dismissive of fifteen-year-old H.S.’s age, stating that ‘any parent who has raised a teenager is well-aware that their thoughts, opinions, and wishes change rapidly. Teenagers are full of hormones and emotions which often results in impulsive, short-sighted decisions. At this age, teenagers are also easily influenced by peer pressure, trends, and pop culture.’ These are not specific findings based on the evidence actually presented to the court,” insisted Judge Crone. “These are blatant and biased overgeneralizations. There is no indication that H.S.’s decision to change his gender via a medical procedure was impulsive or the result of peer pressure or pop culture influences. According to Mother, it took H.S. ‘a year’ before he felt ‘ready’ to tell her and Father about his desire to transition. H.S. has received counseling for gender identity issues, and both Mother and Father are supportive of his course of action, testifying that he seems ‘happier’ now.”

Judge Williams held this parental support against H.S., finding that it had more to do with the parents wanting to support their child’s decisions than with the child’s best interests. To the contrary, wrote Judge Crone, “It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial judge of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity.” He quoted at length from the parents’ trial testimony to show that their support for H.S.’s transition was well-considered. Their testimony about how making these changes would be practically useful for their son as he lived in his gender identity was considered “troubling” by Williams, who criticized the parents, writing of their testimony, “It seemed more in line with parents wanting to support their child’s decisions rather than parents objectively considering the best interests of their child.” Ultimately, Williams was unpersuaded by the parents’ testimony that the transition had resulted in a remarkable affirmative change in their child, from a quiet introverted person to a happy more “interactive” person. As far as Judge Williams was concerned, apparently there was no real change because H.S.’s school grades remained consistent from before to after the transition. He described H.S. as a “well-adjusted” youth prior to his transition – based on what evidence is hard to discern.

Finally, on the point about proof of best interest in terms of mental and physical health, Judge Crone wrote that Williams’ statement that “no admissible evidence” was presented by the parents “obviously is not the case because the court actually admitted testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor. Judge Bailey deems the parents’ testimony ‘conclusory,’ but I respectfully disagree. We must review the trial court’s ruling based on the record before us, and I believe that the record is more than sufficient to support the granting of Mother’s petition to change the gender marker on H.S.’s birth certificate.” He considered Judge Williams’ failure to grant the petition to be “a blatant abuse of the trial court’s discretion.”

Petitioners are represented by Kathleen Bensberg, Megan Stuart, and Kylee Tomblin, of Indiana Legal Services, Indianapolis.

Legal Issues | Tagged gender marker change for transgender minors, Indiana Court of Appeals, Indiana Court of Appeals Judge L. Mark Bailey, Indiana Court of Appeals Judge Rudoph R. Pyle III, Indiana Court of Appeals Judge Terry A. Crone, Matter of A.B. (Indiana Court of Appeals), Matter of Name and Gender Change of H.S. (Indiana Court of Appeals), name change for transgender minors, transgender children, transgender gender marker changes, transgender minors, transgender name changess, transgender youth | Comment

Federal Court Rules That Charlotte (N.C.) Catholic High School Violated Title VII by Discharging Gay Substitute Teacher

September 6, 2021

In 2014, after federal courts ruled that North Carolina had to allow same-sex couples to marry, Lonnie Billard and his long-time partner Richard Donham decided to marry and Billard posted an exuberant announcement on his Facebook page for his friends only. He ended that announcement by stating, “If you don’t agree with this. . . keep it to yourself. You never asked my opinion about your personal life and I am not asking yours.”

Among Billard’s Facebook friends were staff and parents associated with Charlotte Catholic High School, where he had taught as a substitute English teacher since 2012, after a decade as a full-time member of the faculty teaching English and Drama. His friends did not keep the news to themselves, and the school stopped calling Billard as a substitute. When he asked why, he was told by the assistant principal that it was because he “announced his intention to marry a person of the same sex.”

Billard had been a very successful teacher at Charlotte Catholic. He won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year Award in 2012. He had been nominated for that award “every year since its inception,” according to the man who was principal of the school at that time. He had been associated with the school since 2000, and throughout that time he had been in a “romantic relationship” with Donham, whom he listed on Charlotte Catholic employee contact forms as his “friend” or “housemate,” and who was identified on some forms as living at the same address as Billard. Donham came to Charlotte Catholic events with Billard, accompanying him on class trips to New York City with the drama students to see musicals, and had even served as a substitute teacher when Billard was teaching English full-time. Donham also substituted at the Charlotte Diocese’s middle school. Billard claimed that members of the high school’s administration knew that he was gay, but the current principal and assistant principal both claimed, rather incredibly, that they were not aware of his sexual orientation until his Facebook post in December 2014.

The Catholic Church is outspokenly opposed to same-sex marriage, and Catholic schools, which have employed many lesbians and gay men as teachers, have consistently dismissed those employees, regardless of how they have performed their jobs, upon finding out that they intended to or had married same-sex partners. The de facto position of the Church sounds like the federal government’s old “don’t ask, don’t tell” policy on gay military service. They were happy to employ qualified gay people as ministers (especially church musicians) and teachers, so long as the employees were quiet about being gay and did not go public on same-sex marriages, which the Church saw as defying Catholic doctrine and setting a bad example for congregants and students.

Billard filed a charge with the Equal Employment Opportunity Commission in May 2015, claiming a violation of his rights under Title VII, but at that time the EEOC had not yet issued its ruling that it would investigate and prosecute sexual orientation claims under Title VII’s ban on discrimination because of sex. Ironically, the EEOC issued such a decision, in the case of gay air traffic controller David Baldwin, in July 2015, shortly after the Supreme Court ruled in June 2015 in the Obergefell case that same-sex couples had a constitutional right to marry. Billard’s charge was still pending with the EEOC at that time, but perhaps the school’s religious defenses discouraged the EEOC from pursuing Billard’s case directly, as it decided not to sue Charlotte Catholic High School on his behalf, instead issuing a “Notice of Right to Sue Letter” to him in November 2016. He obtained representation from the ACLU Foundation and its North Carolina affiliate, which filed suit against the school in January 2017. On September 3, 2021, U.S. District Judge Max O. Cogburn, Jr., of the federal district court in Charlotte, granted summary judgment to Billard and denied summary judgment to the school, finding that Billard had proven a clear violation of Title VII and that none of the defenses argued by the school were valid.

The school argued that it had not fired Billard because is gay, but rather because he supports gay marriage, which the Catholic Church opposes. The school argued that under the First Amendment’s protection for free exercise of religion, it is privileged to discharge teachers who disagree with the Church’s positions. The school also argued that it was protected from liability by two sections of Title XII that relieve religious institutions, including religious schools, from complying with the statute’s ban on discrimination because of religion. The school also cited a “church autonomy doctrine” under the First Amendment, which prohibits “excessive government intrusion upon religion” and which includes the so-called “ministerial exception” that the Supreme Court has identified as sheltering religious institutions from any liability for their employment decisions regarding ministers. The school also cited the Religious Freedom Restoration Act, arguing that this federal statute would prevent the court from holding it liable for discrimination under Title VII.

The school actually disclaimed any contention that Billard comes within the ministerial exception, but to be on the safe side, Judge Cogburn explained why Billard’s duties as a substitute teacher did not come within the scope of that exception, as most recently described by the Supreme Court last year in a Catholic schoolteacher case, Our Lady of Guadalupe School v. Morrissey-Berru. Despite the Supreme Court’s broad definition of the exception to extend to any religious school teacher who performed any religious functions, the judge concluded that Billard’s charge to lead a prayer at the beginning of each class was too minimal to excuse the School from complying with Title VII in his case. He was not hired to teach religion.

Judge Cogburn rejected the school’s argument that discharging somebody for announcing his plans to marry a same sex partner was not discriminating against him because of his sex (or sexual orientation), drawing a comparison to Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision of 2020. The judge pointed out that a female teacher who posted an announcement on Facebook that she was marrying a man would not be discharged, but when Billard, a man, posted the announcement that he was marrying a man, he was discharged, so clearly his sex was a reason for his discharge. Justice Gorsuch had described similar hypothetical situations in explaining the Supreme Court’s conclusion that firing an employee for being gay was inescapably due, in part, to the employee’s sex, and thus prohibited by Title VII, even though members of Congress in 1964 would not have expected such a ruling. Gorsuch, a “textualist,” takes the view that the words of the statute take priority over the expectation or intentions of the legislators who passed it, and his view won the support of six of the Court’s nine members.

As to the express religious institution exemptions included in Title VII, the court concluded that they were not intended to excuse religions institutions from complying with Title VII’s ban on discrimination because of sex. Rather, they were enacted to allow religious institutions to prefer members of their faith in making employment decisions. Billard is a Catholic, and the court was unwilling to accept the school’s argument that a provision allowing it to discriminate because of religion also gave it a right to discriminate because of sex if it had a religious reason for doing so. Under that theory, a religious institution would be free to discriminate on the basis of race, color, national origin or sex, the other categories prohibited under Title VII, which stretches the religious exception too far and would expose thousands of employees of religious institutions to discriminatory treatment. Congress has not given religious institutions free reign to discriminate against employees for reasons other than the employees’ religion.

As to the Religious Freedom Restoration Act, many federal appeals courts have ruled that it applies only to situations where the government is suing to enforce a federal statute against a religious defendant, but not to lawsuits brought by private individuals. Although the Supreme Court has yet to rule on this question, and at least one appeals court has disagreed with that conclusion, Judge Cogburn found based on a close reading of the text of RFRA that it was clearly aimed to restricting enforcement actions by the government, and that a court decision in a lawsuit brought by a non-governmental litigant, such as Lonnie Billard, would not be subject to RFRA’s requirement that the government prove it had a compelling interest to enforce a federal law that burdens the defendant’s free exercise of religion. The court itself is not a “party” to a non-governmental lawsuit, and in the absence of a governmental party, the affirmative defense provisions of RFRA have no application.

Several lawsuits are pending around the country in which employees of Catholic institutions who were discharged over the same-sex marriage issue are seeking relief under Title VII. In many of them, the plaintiffs’ job duties were such as to bring them within the ministerial exception. Billard’s is the rare case that was not, at least according to Judge Cogburn’s analysis.

Having granted Billard summary judgment on the merits of his claim, Judge Cogburn ordered that the case “Proceed to trial to determine the appropriate relief that should be granted.” It is likely that to avoid a court order to reinstate Billard as a substitute teacher, the school may offer a substantial financial settlement. Title VII specifically lists “reinstatement” as a remedy for a wrongful discharge. If the case doesn’t settle and Judge Cogburn orders reinstatement, the school and the Roman Catholic Diocese of Charlotte, a co-defendant, are likely to appeal to the 4^th Circuit Court of Appeals.

Judge Cogburn was appointed to the court by President Barack Obama. In 2014, he wrote the decision striking down North Carolina’s ban on same-sex marriage, a decision that was upheld by the 4^th Circuit and denied review by the Supreme Court, and it was the decision that led Billard and Donham to decide to get married that led to this lawsuit!

Legal Issues | Tagged ACLU Foundation, ACLU of NOrth Carolina, Billard v. Charlotte Catholic High School, Catholic school teacher, discharge of Catholic teachers for marrying same sex partners, discrimination because of sex, First Amendment religion clauses, free exercise of religion, gay rights, Jr., LGBT Catholic school teachers, LGBT rights, Lonnie Billard, ministerial exception, Religious Freedom Restoration Act, Richard Donham, same-sex marriage, same-sex marriage and Catholic doctrine, sexual orientation discrimination, Title VII and sexual orientation discrimination, Title VII of the Civil Rights Act of 1964, Title VII religions institution exception, U.S. District Court, U.S. District Judge Max O. Cogburn, Western District of North Carolina | Comment

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

September 2, 2021

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process. Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021). Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law. After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case. Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot. Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9^th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender. Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law. The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9^th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9^th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case. The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1^st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9^th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup. Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3^rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law. Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9^th and 3^rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions. See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’” Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9^th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity. The 9^th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9^th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9^th Cir. 2016), a companion case decided by the 9^th Circuit together with Pickup. The law does not target religion. “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation. Its object is to ‘protect the physical and psychological well-being of minors. . . The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion. Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch. “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny. “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9^th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech. Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim. Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle. The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Legal Issues | Tagged "professional speech", 9th Circuit Court of Appeals, Alliance Defending Freedom, Conversion Therapy Bans, Due Process of Law, free exercise of religion, freedom of speech, Justice Clarence Thomas, King v. Governor of New Jersey, King v. Murphy, licenses counselors, NIFLA v. Becerra, Pickup v. Brown, Pickup v. Newsom, professional conduct, sexual orientation change efforts (SOCE), Tingley v. Ferguson, U.S. District Court, U.S. District Judge Robert J. Bryan, U.S. Supreme Court, void for vagueness, Welch v. Brown, Western District of Washington | Comment

Virginia Supreme Court Panel Orders Reinstatement of Gym Teacher Suspended for Publicly Opposing School District’s Proposed Policy on Transgender Students

On August 30 a three-judge panel of the Virginia Supreme Court upheld a trial court’s order that Loudoun County School Board must reinstate Leesburg Elementary School gym teacher Tanner Cross, who was placed on paid leave after he spoke out at a School Board meeting against a proposed policy that would require teachers not to misgender transgender students. Loudoun County School Board v. Cross, Record No. 210584, Circuit Court No. CL21003254-00. The Court agreed with the trial judge that Cross’s statement probably enjoyed freedom of speech clause protection under the Virginia Constitution, applying principles developed by the U.S. Supreme Court under the 1^st Amendment concerning constitutional protection for public employee speech.

A recent Virginia statute, Code Section 22.1-23.3, mandated that the state’s Department of Education “develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools.” The statute also requires school boards to adopt policies “that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”

On May 25, 2021, the Board held a public meeting at which it discussed a proposed policy that would allow transgender students to use a name different than their legal name, allow them to use gender pronouns different from those corresponding to their “biological sex,” would require school staff to use students’ chosen names and gender pronouns, and would allow students to use school facilities and participate in extra-curricular activities consistent with their “chosen” gender identity.

Cross, who had taught at Leesburg Elementary for eight years, was strongly opposed to the proposed policy, and attended the public meeting to speak during the “public comment” period. He claimed to be speaking “out of love for those who suffer with gender dysphoria,” referencing a 60 Minutes feature about “young people who transitioned” and then “felt led astray because of lack of pushback, or how easy it was to make physical changes in their bodies in just three months. They are now de-transitioning,” he said. He stated opposition to the proposed policy because “it will damage children, defile the holy image of God.”

Cross said, “I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.”

Cross’s comments generated discussion among Leesburg parents on social media, and after one parent called the school authorities to ask that Cross not have any contact with her child, a supervisor told Cross that he was being placed on administrative leave with pay pending an “investigation.” Then the Assistant Superintendent sent a letter to Cross stating he was under investigation “for allegations he engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary,” and that he was banned from Loudoun County Public Schools property unless he got permission from the Leesburg Elementary principal. He was also informed he would not be permitted to speak on this topic at future Board meetings, and he was relieved from his normal duty of joining with other teachers to greet students as they arrived at the school. All Leesburg Elementary parents and staff received an email announcing his suspension.

Cross obtained representation from Alliance Defending Freedom (ADF), a litigation organization that frequently opposes LGBTQ rights on religious grounds. ADF filed a state court lawsuit claiming that the Loudoun County Board’s actions violated Cross’s free speech and free exercise of religion rights, and sought an immediate order that he be reinstated while the case is litigated. The trial court issued the order on free speech grounds, and the school board appealed. The court was less certain that Cross could prevail on his religious freedom claim, and decided that the school board’s conclusion that Cross would violate the policy based on his statements was premature, because he could avoid compromising his believes by avoiding the use of gender pronouns for students. (Such pre-trial orders are reviewed for “abuse of discretion” by a three-judge panel of the seven-member state Supreme Court.)

Under a 1968 U.S. Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, a public employee who speaks as a citizen on a matter of public interest is protected under the 1^st Amendment from retaliation by their government employer unless their speech disrupts the operation of the employee’s workplace. The Virginia Supreme Court pointed out that it has generally followed federal precedents in interpreting the free speech provision of the state constitution.

In this case, relying on parental discussion on social media and the phone calls that the district eventually received from several parents asking that their children not be exposed to Mr. Cross, the school board claimed that “disruption” of the elementary school justified its action of suspending Cross. It also pointed to his statement signaling that he could not comply with the requirement in the proposed policy that teachers use transgender students’ desired names and genders. The board had ultimately adopted the proposed policy, but there is no indication that there were any transgender children in Cross’s gym classes, although one of the parents who called to complain in response to Cross’s remarks is a transgender individual who reported that Cross’s remarks had upset her children.

The trial judge concluded that the school board had not presented sufficient evidence of actual disruption of the elementary school’s operations to justify suspending Cross for an “investigation” of his remarks, and the Virginia Supreme Court agreed, in a unanimous opinion by three of its members, Justices Arthur Kelsey, Stephen R. McCullough, and Teresa M. Chafin.

Cross’s state court lawsuit relies on Article I, Section 12 of Virginia’s Constitution, which essentially protects the same right of free speech as the federal First Amendment. The court has adopted a “two-step inquiry” to determine whether the government’s action violates this provision, asking first whether the public employee’s speech was on a matter of public concern, and second whether the employee’s interest in making his public comments outweighed the government’s “interest in providing effective and efficient services to the public,” which is essentially the same test the U.S Supreme Court applies under its Pickering decision.

Cross made his statements at a public Board meeting where the proposed transgender policy was being discussed. The court quote a decision by the U.S. Court of Appeals for the 4^th Circuit, which has jurisdiction over federal appeals from Virginia, holding that “both the teacher and the public are centrally interested in frank and open discussion of agenda items at public meetings.” Furthermore, the court pointed out, “In addition to expressing his religious views, Cross’ comments also addressed his belief that allowing children to transition genders can harm their physical and mental wellbeing. This is a matter of obvious and significant interest to Cross as a teacher and to the general public.” And, of course, the court noted that Cross was “opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition, a concept he rejects for secular and spiritual reasons.” Thus, the court concluded that Cross’s interest in making his points at the meeting was “compelling.” Indeed, concluded the court on this point, “We believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”

As against this, the court asserted that the defendants had “not identified an abuse of discretion in the circuit court’s conclusion that [the board’s] interest in disciplining Cross was comparatively weak.” In particular, the court rejected the board’s argument that the trial judge did not give adequate weight to the board’s contention that Cross’s statements had and would continue to have a disruptive effect on Leesburg Elementary School’s operations. The Supreme Court panel agreed with the lower court that the evidence of disruption was weak, and it pointed out that the Board’s argument that Cross had announced that he would not comply with the policy if it was enacted was not raised in the letter sent to Cross announcing his suspension.

Cross had followed up his public comments with an email to the Board and the school superintendent, stating his unwillingness to comply with the transgender policy. But, the court pointed out, the Board took no action based on that email, because, as a private communication rather than a public statement, it had not caused any particular disruption at the school. The court also commented that the Board had presented “no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children,” or that dealing with “managing fallout from Cross’ public comment” had taken up any significant amount of the principal’s time.

“The only disruption that Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” wrote the court. “However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.”

The court also noted two judicial opinions that would support the conclusion that “Cross has a potentially successful claim.” In one, Meriwether v. Hartop, the Cincinnati-based U.S. Court of Appeals for the 6^th Circuit found that an Indiana public university violated a professor’s 1^st Amendment free speech rights when it disciplined him for misgendering a student in class. In another, while finding that a teacher did not have a 1^st Amendment right to disobey a school’s transgender policy, a federal trial court in Indiana observed that “the teacher is not asserting that he was disciplined for criticizing or opposing the policy.”

Thus, the court’s opinion is limited in focusing on the right of the teacher to state his views at a public board meeting on a matter that was being considered by the board, without holding that Cross would necessarily enjoyed constitutional protection from discipline if he actually disobeyed the policy by misgendering students at the school, which would necessarily raise questions under a federal statute, Title IX of the Education Amendments of 1972, whose possible impact was not considered by the court in this case.

As of the end of August, this opinion had not been published on Westlaw or Lexis or the court’s website. We speculate that because it is a three-judge panel ruling on an interlocutory appeal, it would not be deemed suitable for publication as an opinion of the court.

Legal Issues | Tagged elementary school gym teacher, gender identity, gender transition of children, Loudoun County (Virginia) School Board, Loudoun County School Board v. Cross, opposition to gender transition, public employee free speech, suspension of public employee for school board testimony, Tanner Cross, Transgender identity, Virginia Supreme Court | Comment

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