A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit granted a petition by Adamu Sumaila, a gay man from Ghana, for asylum in the United States, reversing decisions by the Board of Immigration Appeals (BIA) , which had affirmed an Immigration Judge (IJ) decision denying Sumaila’s application. Circuit Judge Luis Felipe Restrepo wrote the opinion in Sumaila v. Attorney General of the United States, 2020 WL 1527070 (3rd Cir., March 31, 2020), which is noteworthy for being outspokenly critical of the administrative decision-making in this case.
Although the IJ did not conclude that Sumaila’s account of what happened to him that caused him to flee Ghana was not credible, the court found that the IJ’s conclusion that Sumaila had not suffered persecution severe enough make him presumptively qualified for asylum was not supported by the record, and furthermore that both the IJ and the BIA had failed to apply the appropriate standard based on 3rd Circuit case law for determining whether Sumaila met the high evidentiary bar of establishing his right to protection under U.S. refugee law.
The court particularly singled out “the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.” Counsel listed on the opinion representing Sumaila were Adrian N. Roe, the instructor, and Paige Beddow and Scott A. Cain, the students, who were admitted pursuant to Third Circuit LAR 46.3. The opinion indicates that the students actually argued the appeal before the court.
Sumaila testified to a harrowing experience, as Judge Restrepo summarizes his testimony in the opinion. He was born and raised in Accra, Ghana’s capital, and “first realized he was gay” at age 14 when he shared an “intimate encounter with another boy,” Inusah, whom he met at school. Over the next twelve years the two boys continued their relationship but kept it hidden because, Sumaila believed, such a relationship was “not acceptable.” “He could not speak to his family about his feelings,” wrote Restrepo, “because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father would kill him.”
“When Sumaila was twenty-six years old, his anxieties materialized into a harsh reality,” wrote the judge. “One morning in January 2016, his father unexpectedly entered Sumaila’s bedroom at the break of dawn and discovered Sumaila having sex with Inusah. His father went into a rage and began shouting that ‘his son was having sex with another man,’ and called on others to ‘come, come and witness what my son is up to!’ He demanded answers from Sumaila and condemned his actions: ‘Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed.’”
“Upon hearing this uproar, a crowd of neighbors gathered at Sumaila’s house, forming a violent mob. Together with his father, the mob began to beat the two young men with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading. Sumaila believed the death threats were real. He remembers being doused with kerosene, and hearing calls to set him on fire. He also saw someone in the mob brandish a ‘cutlass,’ a curved sword with a sharp edge like a machete. Fearing that his life was in danger, he managed to escape and ran naked, hurt and bleeding to a friend’s house about ten minutes away. Sumaila told his friend about the attack and about his sexual relationship with Inusah. His friend, too, became afraid. He worried that they could both be killed if people found out that Sumaila was hiding there.”
Sumaila was “too frightened to call the police” or to “seek medical care,” so Sumaila asked his friend to drive him to the neighboring country of Togo. He didn’t really feel safe there, either. He contacted his friend, who was able to retrieve Sumail’s passport from his home, and Sumaila was able to fly to Ecuador. “Sumaila has heard that his father has publicly disowned him for being gay, that he is still looking for him, and that he intends to kill him if he finds him,” wrote Restrepo, and he “still worries about Inusah, his partner of more than ten years. Despite numerous attempts, he has not been able to reconnect with him since that horrific day.”
Sumaila eventually made his way across the border into the United States without formal entry papers, and filed an application for asylum. “Sumaila claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay,” wrote Restrepo, stating in summary form the basis for Sumaila’s petition.
The IJ, though crediting Sumaila’s story, decided that it was just a single incident, that Sumaila was not severely enough injured to seek medical care, that he did not report it to the police (thus not giving the government a chance to take action against his father or the mob for assaulting him), and consequently that he did not prove the level of persecution necessary to trigger the presumption that he would be subjected to persecution if he were sent back to Ghana. The IJ also asserted that Sumaila could avoid persecution on being sent back to Ghana by relocating to another part of the country and keeping his homosexuality hidden. The BIA affirmed this opinion.
The court of appeals panel evidently found this treatment of Sumaila’s asylum case by both the IJ and the BIA to be rather astonishing, especially in light of Ghana’s criminal law treating homosexual conduct as a crime subject to up to three years in prison, and State Department and other non-governmental human rights orgagnizations’ reports about the violence gay people experience in Ghana, including in prison.
The court noted the extensive circuit-level precedent recognizing that persecution on account of sexual orientation can qualify as a ground for asylum under U.S. law, in opinions dating back several decades to the early years of the Clinton Administration. “In rejecting Sumaila’s claim, however,” wrote the judge, “the IJ found that Sumaila had ‘not established that he suffered mistreatment on account of his sexual orientation that rises to the level of persecution.’ The BIA affirmed that finding without expressly reviewing the alleged motive of Sumaila’s tormentors. We construe the IJ’s and the BIA’s truncated decisions as rejecting both Sumaila’s claim that he was targeted ‘on account of’ his sexual orientation and that he suffered persecution.”
The court reached the contrary conclusion. “Here, there can be no serious dispute that the attack and threats Sumaila suffered were motivated by his sexual orientation,” asserted Restrepo. “Sumaila credibly testified that the mob’s violent and menacing behavior was instigated by his father’s outrage at discovering him having sex with another man and offered evidence that his father explicitly connected this violent response to his disapproval of Sumaila’s “homosexuality.’ Others in the mob wanted to report Sumaila to the police, further indicating that they were reacting to his same-sex relationship since that is the only conduct that could have conceivably incriminated Sumaila under Ghanaian law. Sumaila thus has demonstrated that he was targeted on account of his membership in a statutorily protected group.”
As to whether Sumaila met the test of “persecution” for purposes of U.S. asylum law, the court found that its past precedents supported his claim that a credible threat to his life and liberty because he is gay was sufficient to meet the test. “Crediting Sumaila’s testimony as the BIA did, we know that a violent mob beat Sumaila with makeshift weapons and dragged him across the floor from his room to a courtyard, causing him to bleed from his mouth and suffer injuries to his head and back. Sumaila was then threatened with death by burning or beheading, at the same time that he was being doused with kerosene and exposed to a cutlass. In combination with these violent acts of intimidation and his injuries, the death threats were sufficiently ‘concrete and menacing’ to transform this incident from a ‘simple beating’ into outright persecution.” The court also pointed out that, contrary to the government’s argument, the fact that these threats were “unfulfilled” – i.e., that Sumaila managed to escape – did not make them any less significant, in light of the report that his father continued to threaten his life if he returned to Ghana.
“Neither the IJ nor the BIA addressed the significance of these threats under the dispositive case law available at that time, and that omission derailed their analysis,” concluded the court. “The IJ focused exclusively on the ‘beating,’ finding that this incident was not extreme enough to constitute persecution because Sumaila had only been attacked once and he ‘did not require medical treatment.’” This was a mischaracterization of the record, the court pointed out, because he credibly testified to serious injuries, stating that he was afraid to seek medical assistance because of the hostility toward gay people.
“The BIA agreed that this ‘isolated’ incident did not rise to the level of persecution because Sumaila ‘was not so injured that he required medical attention and he was able to run to his friend’s house, which was some distance away[.]’ That analysis was based on a misunderstanding of the law and must be reversed. . . . It is debatable whether the record contains enough evidence to ascertain the full extent of Sumaila’s injuries, but our decision need not hinge on the severity of those injuries because this case involves so much more. . . . In short, because the IJ and the BIA accepted Sumaila’s testimony as true but then proceeded to misstate and ignore certain relevant aspects of that testimony, and because they committed legal error by finding that a single beating without severe physical injury to Sumaila was dispositive, their determination that his experience did not rise to the level of past persecution must be overturned.”
The court also rejected the government’s argument that Sumaila’s failure to report this incident to the police was “fatal” to his claim. In order to gain asylum, a petitioner has to show that he was subject to persecution by the government or by private forces that the government was unwilling or unable to control. In this case, the government argued that Sumaila’s father and the angry mob were not government officials, and Sumaila never sought to get the government involved in dealing with his situation. But for good reason, wrote the court, pointing to the extensive documentation presented by Sumaila’s counsel about the situation confronted by gay people in Ghana.
“Here, the record is replete with evidence that Ghanaian law deprives gay men such as Sumaila of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous,” wrote Restrepo. “Ghana criminalizes same-sex male relationships under the guise of ‘unnatural carnal knowledge,’ defined to include ‘sexual intercourse with a person in an unnatural manner or with an animal.’ The text of this law – equating same-sex male relationships to sex with an animal – is already a clear indication of the government’s official position on gay men. Although the law classifies consensual sex between men as a ‘misdemeanor,’ the offense is punishable by up to three years in prison. Prosecution and disproportionate punishment based on any of the INA’s protected grounds, including sexual orientation, are cognizable forms of persecution, ‘even if the law is generally applicable,’ and perhaps significantly more, are sufficiently severe to constitute ‘persecution’ under this Circuit’s standard. . . . Had Sumaila reported the beating or threats, he would have outed himself and his partner to the police and, on that basis, he could have been arrested, prosecuted and incarcerated, compounding the persecution he had already suffered. This fact alone is compelling, if not dispositive, evidence that Sumaila had no meaningful recourse against his father’s and the mob’s homophobic violence. At best, seeking help from the police would have been counterproductive.”
“The record also shows that the Ghanaian government is unable or unwilling to protect LGBTI persons from other forms of mistreatment,” Restrepo continued. “For instance, Ghanaian law does not prohibit anti-gay discrimination even though there is a well-documented hostility towards the LGBTI community throughout the country. According to the State Department country report, ‘societal discrimination against [LGBTI] individuals’ rises to the level of a ‘human rights problem,’ and discrimination against LGBTI individuals in education and employment is ‘widespread.’ The report cites data from Ghana’s Commission on Human Rights and Administrative Justice, showing that ‘men who have sex with men’ are among the groups of people who have reported incidents of ‘stigma and discrimination,’ including breaches of protected health information, blackmail/extortion, harassment/threats, and violence or physical abuse. Amnesty International’s country report confirms that LGBTI individuals face ‘discrimination, violence and instances of blackmail in the wider community.’ Sumaila submitted other evidence echoing these accounts, including a letter from his friend stating that ‘authorities in Ghana have minimal concern for gay rights and politicians are always promising electorates of eradicating gays,’ as well as a news report evincing anti-gay political rhetoric ahead of the 2016 general elections.”
This evidence went not only to implicating the government as a persecuting actor, but also to the issue of Sumaila’s reasonable fear of persecution if he were returned to Ghana by the U.S. as a known homosexual person. Besides the matter of his father’s continuing threat to find and kill him, there was ample evidence in the record that the only way he would be able to survive in Ghana would be to hide his homosexuality, and asylum law treats that as an important factor.
The IJ and BIA hung their conclusions, in part, on a report (unverified) that there was actually a prosecution going on in Ghana of somebody charged with assaulting a gay man, but there is nothing in the record about how that turned out. “Considering that homophobic violence goes largely unreported because LGBTI persons fear harassment and extortion at the hands of police officers,” wrote the court, “one case in which anti-gay violence was supposedly prosecuted is hardly probative of the government’s ability or willingness to protect gay men. Because the IJ and the BIA disregarded, mischaracterized and understated evidence favorable to Sumaila, including relevant portions of his testimony and the country reports, ‘the BIA succeeded in reaching a conclusion not supported by substantial evidence such that we are compelled to reach a conclusion to the contrary.’”
Having concluded that Sumaila had proved that he was subjected to past persecution, the next step in the court’s analysis, focusing on the question whether he had a reasonable fear of persecution if returned to Ghana, would focus on whether the government had rebutted the presumption that he would face persecution in the future. While ordinarily at this point the case would be remanded to the BIA, and subsequently to the IJ, to allow the government a chance to attempt to rebut the presumption, “remand for this purpose is not necessary here, because even without applying the presumption and corresponding burden-shifting framework, the IJ’s and the BIA’s finding that Sumaila does not have a well-founded fear of future persecution cannot stand on this record,” wrote Retrepo.
“The IJ found that, although Sumaila ‘had]credibly testified that he subjectively fears persecution if returned to Ghana,’ he failed to show that ‘a reasonable person would fear the same.’ There is no dispute that Sumaila’s subjective fear is genuine. Thus, we focus on whether Sumaila’s fear of future persecution is objectively reasonable.” The court found the IJ’s conclusions on this point, affirmed by the BIA , to be “not supported by substantial evidence, because they are based on mischaracterizations, unreasonable inferences, and an incomplete assessment of the record.”
“Up until the attack, Sumaila’s ability to avoid this sort of homophobic abuse hinged on his ability to dissemble his sexual orientation and keep his sexual relationship with his partner hidden,” wrote the court. “No major leap is required to conclude that other gay men like Sumaila are escaping persecution by hiding or suppressing their sexuality as well. Indeed, anti-gay laws such as Ghana’s criminalization of sex between men are intended to stigmatize and punish, in effect, to suppress the expression of gay identity and sexuality in society. Secreting his gay identity is not a workable solution for Sumaila. Now that he has been publicly outed by his father, the risk of future persecution at the hands of uncontrolled private actors has increased, as evidenced by his father’s success at enlisting neighbors willing to assault and kill Sumaila because he is gay.”
“Sumaila is also at a higher risk of being prosecuted and punished, i.e., persecuted by the state, after being outed as a gay man. The Government responds that any future risk of arrest is not persecution because it would be ‘arbitrary.’ That argument misses the mark. The issue is not arbitrary arrest but state-sanctioned prosecution and punishment on account of a statutorily protected status. In no other context would prosecution and disproportionate punishment based on any of the INA’s protected grounds be anything other than persecution. If Sumaila were facing these risks because of his religious beliefs or political opinion, we would not hesitate to find an objectively reasonable fear of future persecution in these circumstances.”
“In short,” wrote the court, “we hold that Sumaila’s objective experience with anti-gay violence, the ongoing threats to his life, Ghana’s criminalization of same-sex male relationships and the widespread unchecked discrimination against LGBTI persons, combine to satisfy the requirement that his fear of persecution be objectively reasonable.”
Finally, the court addressed the IJ’s bizarre assertion that Sumaila could avoid persecution by staying away from Accra, his hometown, or by hiding his homosexuality. “The IJ found that there was no indication that Sumaila ‘would not be safe from his family if he relocated to another part of Ghana.’ That finding is based on unreasonable presumptions and a misunderstanding or mischaracterization of relevant evidence. Sumaila has reason to believe his father is still looking for him. Nothing in the record suggests that Sumaila’s father cannot travel freely around the country in search of Sumaila. Considering that Ghana’s criminalization of same-sex male relationships is country-wide, and that ‘widespread’ homophobia and anti-gay abuse is a ‘human rights problem,’ relocation is not an effective option for escaping persecution. Nor is it a reasonable solution,” the court continued. “Relocation is not reasonable if it requires a person to ‘live in hiding.’ To avoid persecution now that he has been outed, Sumaila would have to return to hiding and suppressing his identity and sexuality as a gay man. Tellingly, the IJ’s observation, no matter how ill-advised, that Sumaila could avoid persecution and live a ‘full life’ if he kept ‘his homosexuality a secret,’ was a tacit admission that suppressing his identity and sexuality as a gay man is the only option Sumaila has to stay safe in Ghana. The notion that one can live a ‘full life’ while being forced to hide or suppress a core component of one’s identity is an oxymoron.”
“Because Sumaila suffered past persecution and has a well-founded fear of future persecution on account of his sexual orientation and identity as a gay man, he qualifies as a refugee under the INA. Therefore, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion,” concluded the court.
The court supplemented its opinion with a footnote critical of the IJ’s performance in this case. “In case the BIA decides to remand to the IJ for any reason, we caution the IJ to exercise greater sensitivity when processing Sumaila’s application, as we are troubled by some of the IJ’s comments and questions,” wrote Restrepo. “In addition to suggesting that Sumaila would be better off hiding his identity as a gay man, the IJ questioned Sumaila in explicit detail about his sexual relations with Inusah, going so far as to ask about sexual positions. It is unclear why that line of questioning would be relevant to Sumaila’s claim, but to the extent those questions were intended to establish or test his self-identification as a gay man, they were off base and inappropriate. We urge IJs to heed sensible questioning techniques for all applicants, including LGBTI applicants.”
Judge Restrepo, a native of Colombia who became a U.S. citizen in 1993, was appointed to the district court and a few years later to the 3rd Circuit Court of Appeals by President Barack Obama.
A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit granted a petition by Adamu Sumaila, a gay man from Ghana, for asylum in the United States, reversing decisions by the Board of Immigration Appeals (BIA) , which had affirmed an Immigration Judge (IJ) decision denying Sumaila’s application. Circuit Judge Luis Felipe Restrepo wrote the opinion in Sumaila v. Attorney General of the United States, 2020 WL 1527070 (3rd Cir., March 31, 2020), which is noteworthy for being outspokenly critical of the administrative decision-making in this case.
Alaska Federal Court Says Employer’s Denial of Insurance Coverage for Sex-Reassignment Surgery Violates Federal Law
A federal district court in Anchorage, Alaska, has ruled that a public employer’s health benefits plan violates Title VII of the Civil Rights Act of 1964 because it categorically denies to employees, whether male or female, coverage for the surgical procedures used to effect gender transition. According to the March 6 opinion by Senior U.S. District Judge H. Russel Holland, the employer’s exclusion of this coverage is “discriminatory on its face and is direct evidence of sex discrimination.” The ruling does not require all employers to provide coverage for gender reassignment surgery, but it requires that they not discriminate because of an employee’s sex in deciding which procedures are covered.
Judge Holland’s decision has potentially wide application because Title VII applies to all employers with 15 or more employees, including both businesses and government employers at the federal, state and local levels. Although a trial court ruling is not a precedent binding on other courts, Judge Holland’s explanation for his ruling may provide a persuasive precedent both for courts confronting similar claims and for employers deciding how to respond to employees seeking such coverage under their employee benefit plans.
Lambda Legal filed suit on behalf of Jennifer Fletcher, who works as a legislative librarian for the State of Alaska. Fletcher is enrolled in AlaskaCare, a self-funded employee health care plan that is administered by Aetna Life Insurance Company. The Plan “provides benefits for medical services and procedures that are medically necessary and not otherwise excluded from the Plan,” according to the State’s written responses to discovery questions posed by Fletcher’s attorney from Lambda Legal, Tara L. Borelli.
During discovery in this case, the State conceded that for “some” transgender individuals, surgical procedures for gender transition may be “medically necessary,” but the plan formally excludes performance of the procedures in question for that purpose. The procedures in question are covered for employees if they are necessary to address a medical issue other than gender transition. None of the procedures at issue in this case are used solely in connection with gender transition.
Fletcher was diagnosed with gender dysphoria in 2014 and began the process of social, legal, and medical transition under professional care, starting hormone therapy that year. By 2016, she and her health care provider agreed that gender transition-related surgery was necessary for her transition. In her complaint, Fletcher claimed that such treatment was “essential” for her “well-being.”
In November 2016, Fletcher contacted Aetna to discuss coverage for her surgical treatment, but was told that the Plan did not cover it, and would not in 2017. Although the Plan has since been modified to allow coverage for some aspects of gender transition, hormones and counseling, the express exclusion of surgery continues.
Fletcher’s request for coverage spurred the State to study the cost of eliminating this exclusion, for which it engaged a consultant, who advised that the annual increase in claims on the Plan would be $60,000. Although there was internal discussion about this within the State government, no further action was taken to change the Plan to cover surgical transition procedures.
Because AlaskaCare would not cover her surgery, Fletcher obtained her surgery in Thailand, where the procedure is less expensive than if it were performed without insurance coverage in the Unites States. She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the Plan’s exclusion violates Title VII’s ban on discrimination in “terms and conditions of employment” because of an individual’s sex. The State’s simplistic response was that because the Plan excludes coverage for any surgical procedure for purposes of gender transition, whether the employee involved was identified as male or female at birth, there was no discrimination “because of sex.” The EEOC rejected this argument, and issued a finding that the State’s policy violates Title VII. On May 17, 2019, the EEOC notified Fletcher that its attempt to “conciliate in this matter” with the State was unsuccessful, authorizing her to file a lawsuit.
Fletcher’s complaint alleged that the State discriminated against her because of her “sex” which, she alleged, includes “discrimination on the basis of gender nonconformity, gender identity, transgender status, and gender transition.” This list covered all the bases of different theories that federal courts have used at various times to evaluate Title VII claims by transgender plaintiffs. After discovery, Fletcher moved for summary judgment on the question whether the Plan exclusion violates Title VII, while the State moved for summary judgment to dismiss the entire lawsuit on the merits.
As it turned out, the list of alternative coverage theories in Fletcher’s complaint was unnecessary, because Judge Holland concluded that the exclusion was, on its face, discrimination “because of sex.”He based this conclusion on the State’s concession that all the surgical procedures involved in Fletcher’s transition would be covered if they were performed for reasons other than gender transition.
Thus, if Fletcher was identified as female at birth but needed the vaginoplasty procedure for some reason other than transition, she would be covered, and indeed that procedure is employed to deal with some medical conditions experienced by women. Because she was identified as male at birth, however, coverage for the the procedure was denied, because its only purpose for somebody identified as male at birth would be for gender transition. To Judge Holland, this was clearly an exclusion specifically because of the sex of the employee, and one had to go no further into theories of gender nonconformity, gender identity or transgender status in order to bring her claim within the coverage of the statute.
Under Title VII, any “disparate treatment” between men and women regarding a particular term or benefit of employment is illegal unless it can be justified as a “bona fide occupational qualification” (BFOQ) that is “reasonably necessary to the normal operation or essence of an employer’s business.” In this case, Holland commented, “Defendant has not argued, nor could it, that there is any BFOQ for the disparate treatment at issue here. As such, plaintiff is entitled to summary judgment that defendant violated her rights under Title VII.”
While granting Fletcher’s motion, the court simultaneously denied the State’s summary judgment motion. Still to be determined is the remedy for the violation. As Fletcher has already had the surgical treatment, the court needs to decide what to award for compensation for violation of the statute. In light of the court’s decision on the merits of Fletcher’s claim, it is likely that the parties will negotiate a settlement on damages.
Judge Holland was appointed to the District Court by President Ronald Reagan and took senior status in 2001.
A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity. Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).
The decision was made by a panel comprised entirely of judges appointed by Democratic presidents. Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.
The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room. This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.
In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima. Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”
The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex. The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.
The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female. The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”
In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.
The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima. “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.” They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.
Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.
The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.
The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause. They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.
Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.” He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”
He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX. Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation. The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation. These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.
The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents. “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”
The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds. The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs. “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement. The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.
The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students. Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.
This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year. However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step. If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.
Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court. In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.
The court received nine amicus briefs, none of which supported the plaintiffs’ position! The American Civil Liberties was permitted to argue on behalf of the rights of transgender students. All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights. The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees. An expanded panel of eleven would necessarily include some of Trump’s appointees.
9th Circuit Denies En Banc Review in Idaho Transgender Prisoner Case in a Sharp Political Divide That Foreshadows Supreme Court Review
Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo. The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights. On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing. In the 9th Circuit, an en banc panel would have eleven judges. Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.
This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition. This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court. Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.
The denial of review was by no means unanimous. It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving. Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain. None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition. Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees. (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)
It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term. There are no 9th Circuit vacancies for him to fill at present.
Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges. In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”
The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment. The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual. The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled. Edmo’s expert witnesses, both involved with devising the most recent edition of the WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.
Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure. The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place. They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.
By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated. The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.
Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts. O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context. He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.
He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.
In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.” Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.
O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition. He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.
He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.
Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year. Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.
Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today. Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.
Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.” “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use. He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts. The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.
In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning. Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.” For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated. Thus, this is not “unusual.” And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession. They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”
Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community. Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision. Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures. Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.
Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment. He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation. “Deliberate indifference” requires a higher showing by the plaintiff. Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.
Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis. He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference. Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”
Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling. They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference. Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.
On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.
Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.
Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.
The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.
Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.
Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.
Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).
A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children. Judge Frank Easterbrook wrote the opinion for the court.
The timing of this appeal made the outcome unsurprising. In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates. See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016). Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples. Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.
In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit. But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date. Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.
Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate. Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.” Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.
Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook. “In its view, birth certificates in Indiana follow biology rather than marital status. The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”
By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor. Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.
That the argument is complete nonsense certainly did not help the state’s case. Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement. “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote. “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing. Others may name their husbands for social reasons, no matter what the form tells them to do. Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.” This is the presumption that the husband of a married woman who gives birth is the father of her child. “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot. Nothing about the birth worksheet changes that rule.”
The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate. Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage. But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?
The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold. Yet again, the state’s insistence on perpetuating the former legal regime was rejected.
Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers? Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother. One set of plaintiffs in this suit shows this. Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor. Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother. There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”
“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” Because the current statute does that, he continued, “its operation was properly enjoined.”
However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.” For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.” Easterbrook asserted that neither of these provisions violated the constitution. “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.
“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded. “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”
Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum. The third judge on the panel, Diane Sykes, was appointed by George W. Bush. Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents. The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage. After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.
Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms. Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.
Virginia Court Denies Annulment to Woman Who Claims Her Marriage to Transgender Spouse was Induced by Fraud
This is one of those “truth is stranger than fiction” stories. In Sun v. Riley, 2019 Va. Cir. LEXIS 1180 (Virginia – Fairfax County Cir. Ct., Dec. 30, 2019), Circuit Judge David A. Oblon denied a petition by Renee Sun to annul her marriage to Joseph Michael Riley, either on the ground that it was not consummated or that Riley had defrauded her by not disclosing an intention to transition to female gender. The judge pointed out that Sun could alternatively seek a divorce.
Sun and Riley married on November 19, 2017. On March 29, 2019, Riley “underwent a surgical procedure consistent with a male to female gender reassignment,” wrote Judge Oblon. “Sun testified she learned of this, not from Riley, but from medical records she found in their bedroom. To the contrary, Riley testified he discussed it with Sun before the procedure. Sun testified he only told her he was obtaining a vasectomy, and not a bilateral orchiectomy.”
(Translation: A vasectomy is a procedure to block the route by which sperm generated by the testicles can be ejaculated through the penis, and is one method of birth control. A bilateral orchiectomy is a procedure by which the testicles are removed and may be a prelude to further procedures of penectomy and construction of a vagina.)
Obviously, there is a story behind this, much contested by the parties to this case. “Prior to the marriage,” relates Judge Oblon, “Riley was ‘unsure of [his] gender,” according to his testimony. “He engaged in hormone testing and took female hormones on May 16, 2018, roughly si months before marriage.” He testified that he had told Sun about this “in passing,” by saying that “he was a girl and like to ‘dress up,’” and he claimed that Sun was “supportive.” In her testimony, she recalled Riley “joking” about being a girl and liking to dress up, and she admitted he mentioned having taken hormones but explained that it was to treat “in-grown hair” and assured her that it would not turn him female, because “a doctor oversaw the treatment and the dosage was low.” Sun testified that she did not know Riley was transitioning to become female, they had no discussions about gender reassignment, and she thought their mutual intention was to have children. Riley claimed in his testimony that they discussed the fact that he did not want to have children.
“They never engaged in coitus once married,” wrote Oblon. Riley claimed he had approached Sun twice to engage in sex, but she “rebuffed him” and he “did not wish to force her,” so he desisted and their marriage did not include sex. “He denied being impotent before marriage, and on either of his two post-marriage attempts at coitus.” Sun claimed not to recall these incidents, but testified that she never approached Riley about having sex. “She did not testify that she ever asked him for coitus or even asked why they remained celibate.” This situation continued from November 19, 2017 until after Riley’s surgical procedure on March 29, 2019, after which Sun’s discovery of the medical records and subsequent questioning of Riley led her to file her petition for annulment.
“When a marriage is annulled,” wrote the judge, “the law treats the marriage as a nullity. It never happened because it was either void ab initio (such as in the case of bigamy) or it is voidable (such as in the case of marriage to one lacking capacity to consent). “The biggest effect is that annulments are divorced from the benefits of Virginia’s equitable distribution and spousal support laws,” as a result of which “parties seeking annulment must be held to their high evidentiary burdens” – in this case, the petitioner must meet a “clear and convincing evidence standard.” By contrast, Virginia, like all other states, now has a no-fault divorce regime, and divorce is the alternative to annulment for terminating a marriage. But Sun did not file for divorce, seeking instead to have the marriage declared to have never been validly formed.
She advanced two grounds. First, she pointed out, they never had sex, so the marriage had not been “consummated.” Judge Oblon rejected this ground, pointing out that the statute governing annulment – Va. Code. Sec. 20-89.1 – lists grounds for annulment, but lack of sexual consummation is not among them. “Noticeably absent is ‘coitus,’ ‘sexual intercourse,’ or any synonymous term,” he wrote, pointing out as well that “coitus is nowhere included in the solemnization procedures” of the marriage law, and the word “consummated” as used in the law does not refer to sexual intercourse.
However, a marriage that was induced by fraud could be a ground for annulment under Va. Code Ann. Sec. 20-89.1(A). The party charging fraud must prove by clear and convincing evidence “(1) a false representation, (2) of a material fact, (3) made intentionally an knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” The court noted a prior Virginia case in which an annulment had been granted on fraud grounds, explaining: “The court did not hold that consummation was itself a condition precedent to a valid marriage. Rather, it held that the fraud was misleading a person to marry with the intent to deny marital relations, not the lack of marital relations by itself.”
Weighing the credibility of testimony by Sun and by Riley, the court concluded that Riley was more believable than Sun on key points. “In the present case,” he wrote, “Riley testified he entered the marriage with the intent to consummate it. He claimed he tried twice with the ability to perform, was twice rebuffed, and that he never tried again. The Court believed his testimony.”
Sun claimed not to recall these advances, but did not deny that Riley tried to get her to have sex. “Tellingly,” wrote Oblon, “she admitted she never approached him for marital relations despite her stated goal of having children. She did not even testify that she ever initiated a conversation about why they would not have sex. This is very different from the language she used in her Petition. There, she wrote, ‘the parties have not engaged in any sexual relations or sexual contact due to his vehemently refusing to do so.’ The Court finds as fact her ore tenus testimony to be more credible than her Petition and concludes that Riley did not ‘vehemently’ refuse sexual relations; rather, he tried and was rebuffed, and it was Sun who did not want these relations.” Thus, Sun did not show by clear and convincing evidence that Riley defrauded her.
The court rejected Sun’s alternative argument that Riley’s failure to disclose before they got married any intention on his part to transition was itself fraud per se. She claimed she believed she was marry a man who wanted to be a man and have children with her, not a person in the process of becoming a woman, and pointed to various events, including her claim that Riley concealed from the steps undertaken towards transition by misrepresenting the procedure he was getting as a vasectomy. In response, “Riley implicitly argued that it is not as simple as Sun argues. He testified he never wanted to be transgender, he wanted to have marital relations with Sun, and his feelings changed over time despite his wishes.”
Neither party presented expert witnesses, leaving the Court to try to figure out what was going on in this case. In the absence of expert testimony, the court resorted to “burdens of proof and weight of evidence under the lens of its own understanding and of common sense. So viewed, Sun has not proved by clear and convincing evidence that Riley defrauded her into marrying him.” While Oblon conceded that Sun’s feeling of being defrauded was understandable, “she did not prove it.” And Oblon embraced the view that “people are not static; they change over time – some in ways more dramatic than others.”
“Must a person ‘unsure of his gender’ before marriage, who now believes he was ‘not supposed to be male,’ have told this to a future spouse to avoid defrauding the spouse?” he asked. “the Court can conceived of circumstances where failure to so inform – or to affirmatively hide these feelings – could amount to fraud in the inducement. However, on the present record, the Court finds Sun failed to prove by clear and convincing evidence that, at the time of her marriage, Riley defrauded her by knowing he did not wish to engage in and perpetuate a marriage between a man and a woman with her. The Court believed Riley that he entered the marriage believing he would be in a lifelong relationship with Sun. It belived him that he tried to have marital relations with her. It believed him that he was unsure of his own sexuality, but that he wanted to be married to Sun as a male.”
In effect, the court seems to have believed that Riley, not having accepted that he was transgender and not wanting to be transgendered, intended to marry Sun and live in a man-and-woman marriage. It didn’t work out that way, but she did not prove that he intended to defraud her by marrying, and the statute places the burden of proof on the party seeking the annulment. Furthermore, the court seems to fault Sun, stating: “Counterfactually, the evidence showed that Sun knew – pre-marriage – that he joked about being a girl and dressing up. She knew he had taken female hormones. She rebuffed his sexual advances and did not make advances of her own or question him as to their celibate status. If one were to apply an ex post analysis to this case, one could make a case that Sun should have known Riley was on a trajectory toward becoming a female someday.” So much for the fraud argument. . . .
Thus the Petition for annulment was denied. The opinion as reported by LEXIS indicated that some text was “redacted by the court.” The opinion lists Danielle A. Quinn of Dycio & Biggs, PC, Fairfax, as counsel for Sun. Riley represented himself.
U.S. District Judge Mary Rowland, an out lesbian whose nomination to the federal bench by President Donald J. Trump was recently confirmed by the Senate, has ruled that the Board of Immigration Appeals (BIA) erred in denying a petition by Thomas Valdivia, Jr., a U.S. citizen, to award spousal residency rights to his husband, Radu Cheslerean, a Romanian citizen. Valdivia v. Barr, 2019 U.S. Dist. LEXIS 191616 (N.D. Ill., Nov. 5, 2019). The Board, affirming a district director’s decision to deny the petition, rested its ruling on its conclusion that Cheslerean had previously married a woman in order to obtain U.S. immigration benefits.
The story begins on December 31, 2005, when Cheslerean attended a New Year’s Eve party and met Nina Garcia, whom he married about a month later. In August 2006, Garcia filed an I-130 Petition with the Immigration Service, seeking U.S. spousal residency rights for her husband. That November, Garcia and Cheslerean went with their lawyer to an interview at the U.S. Citizenship and Immigration Services field office in Chicago. After the interview, nothing happened until July 31, 2009, when the Chicago office director issued a Notice of Intent to Deny the I-130 petition. In September 2009, USCIS denied the petition and Garcia appealed to the BIA, which dismissed the appeal in February, 2011. Several months later, Garcia and Cheslerean divorced. The Judgment of Divorce states that they “lived separate and apart as of March 15, 2007, and had no children together.
Several years later, Cheslerean married Valdivia on May 17, 2015. On September 6, 2016, Valdivia filed an I-130 petition on behalf of Cheslerean, and the men were interviewed at the Chicago Field Office on January 12, 2017. When the office issued a Notice of Intent to Deny, Cheslerean submitted an affidavit explaining his two marriages. He stated that in his “relationship with Nina, we did not plan ahead, or have insurance or much other evidence of a commingled life because we had very little money, and any savings we had we would just spend. We were young and immature and didn’t think about the future or plan ahead.” Describing his relationship with Valdivia, Cheslerean wrote that he grew up in a conservative Christian orthodox family that treated homosexuality as a sin, and “coming to terms with who I am and living my life authentically as a gay man was a painful journey and it took me a lot longer than it takes other gay men these days.” But the Chicago Director denied Valdivia’s petition in March 2017, and the BIA dismissed his appeal on December 14, 2017, leading to this lawsuit.
The premise for the BIA’s decision is a section of the immigration statute that says a Form I-130 cannot be approved if the beneficiary (in this case Cheslerean) has ever sought immigration benefits based on a marriage entered into to evade immigration laws — what the Immigration Service refers to as a “sham marriage.” The agency and the BIA concluded that the marriage with Garcia had been for the purpose of getting immigration benefits and was not a genuine marriage. Cheslerean tells a different story, and in this lawsuit, Valdivia and Cheslerean contend that neither marriage was a sham marriage, each was genuine in its own way, even though the earlier one did not last very long and came apart when Garcia’s I-130 Petition was finally denied by the BIA.
The BIA specifically emphasized an affidavit that Valdivia had filed in 2009 in support of Garcia’s petition of the I-130 on behalf of Cheslerean. The BIA argued that “Valdivia offered no explanation in his 2017 affidavit (submitted in support of his own I-130 Petition on behalf of Cheslerean) why he did not include his account of the 2007 events in his 2009 affidavit filed in support of Cheslerean’s marriage to Garcia.” In responding to this lawsuit, BIA argued that the two affidavits “created issues of credibility for all concerned” because Valdivia’s 2017 affidavit “made it obvious that he was being less than fully candid in August of 2009 when he did not disclose the true nature of his relationship to Cheslerean.”
But Judge Rowland was not convinced by this. “Nowhere in the USCIS and BIA decision was Validiva’s credibility an issue, based on his 2017 affidavit or anything else,” she wrote. “Defendants argue that the BIA ‘indicated they reviewed the response to the NOID that included the Valdivia affidavit.’ The BIA did state that it reviewed the response to the NOID, but nowhere in the decision did the BIA discuss or reference Valdivia’s 2017 affidavit or state that it created credibility issues for any of the affiants at the time.” From a look-back to the earlier proceeding, it seems that the denial of Garcia’s petition was, as explained in Cheslerean’s affidavit in the current case, premised on the failure to check the boxes that CSIS uses to evaluate I-130 applications in an attempt to weed out sham marriages – most specifically the lack of commingled resources and other documentary evidence such as insurance policies.
“The USCIS and BIA did not based their decisions [in this case] on a finding that Valdivia failed to disclose his earlier attraction to Cheslerean,” wrote Judge Rowland. “To the contrary, the USCIS found that the evidence submitted in response to the NOID ‘mainly reiterated what was stated in statements previously submitted in regards to the marriage of Ms. Garcia and Mr. Cheslerean.’” Thus, she found that the Defendant’s arguments now about the 2017 Valdivia affidavit violate a doctrine that an agency many not defend the administrative decision in the Garcia case based on a new ground that was not mentioned in its original decision.
The BIA now sought to rely as well on the fact that in 2009, the USCIS Director in Chicago explained the ruling by referring to an admission by Garcia that she and Cheslerean were “just friends” even though they were not formally divorced until after the BIA’s 2011 decision. “Defendants raise the issue of the short duration of the Garcia-Cheslerean marriage and point out that Garcia’s 2009 affidavit stated that Cheslerean ‘is now a good friend.’ Neither the 2017 BIA decision nor the 2017 USCIS decision rely on this statement to support a finding of marriage fraud. Moreover, this statement by Garcia refers to her relationship with Cheslerean in 2009, not their relationship when they married in 2006.” Under agency and court decisions about these issues, it is clear that the question of “sham marriage” relates to the time the marriage was entered into, not the state of the relationship years later.
Judge Rowland referred to a prior immigration ruling stating that “the fact that a marriage at some point becomes nonviable or nonsubsisting does not in itself indicate that the marriage was a sham at its inception,” and since it is the purpose for which a couple marries that is the focus of attention for purposes of immigration law, the fact that Garcia and Cheslerean were no longer living together by the time the BIA denied Garcia’s appeal was not relevant to whether the earlier marriage should now be a disqualifying factor on Valdivia’s petition for residency rights for his husband. Nobody is contending that the marriage between Valdivia and Cheslerean is anything but bona fide.
Ultimately, Judge Rowland concluded that the records about the earlier marriage and I-130 petition did not prove that the earlier marriage was a sham. The story told by Valdivia and Cheslerean now is credible. Garcia and Cheslerean met at a party and married, that marriage eventually broke up, perhaps we might speculate partly with Cheslerean’s discovery that he was actually falling in love with their mutual friend, Valdivia. Cheslerean finally embraced his sexual orientation and became Valdivia’s boyfriend and then his husband. Case closed.
Valdivia and Cheslerean are represented by Noelia Rodriguez-Quinones and Nancy Marcia Vizer of Chicago.