Tag Archive for "14th Amendment" - Art Leonard Observations

Posts Tagged ‘14th Amendment’

Eleventh Circuit En Banc Holds Transgender Boy Not Entitled to Use Boys’ Restroom at Florida High School

Posted on: January 1st, 2023 by Art Leonard No Comments

Ruling in Adams v. School Board of St. Johns County, Florida, 2022 WL 18003879, 2022 U.S. App. LEXIS 35962 (Dec. 30, 2022), a case that could have been dismissed as moot if U.S. District Judge Timothy Corrigan (M.D. Fla.) had not awarded $1,000 in damages to Drew Adams in 2018, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, voted 7-4 to reverse the district court and two vacated 2-1 opinions by a three-judge panel and hold that denying Adams, a transgender boy, access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972. The 11th Circuit’s ruling makes a binding precedent for the federal courts in Florida, Alabama and Georgia.

All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights. The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented. The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting. The only Republican appointee to vote in favor of Drew Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.

Circuit Judge Barbara Lagoa’s opinion for the court parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the 4th Circuit (Grimm v. Gloucester County School Board, 972 F.3d 586 (4^th Cir. 2020) and the 7th Circuit (Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F. 3d 1034 (7^th Cir. 2017). Lambda Legal, which is representing Drew Adams, has a difficult strategic decision to make, since the split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.

Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age. When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident for some time until two girls complained to the school administration. No boys had ever complained about Adams using the boys’ restrooms. Adams was then instructed that the only restrooms he could use were single-user gender neutral restrooms or the girls’ restrooms.

The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistently with their gender identity except for the use of single-sex facilities. As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district. Thus, Adams, who enrolled in the 4^th grade, would be treated as a girl for these purposes, and the district restricted the use of restrooms – the point of contention in this case – on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.

Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male. But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.

During the trial, it was established that if a student who was identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male. Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but was actually based on the sex identified on legal documents at the time they enrolled in the school district. And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia. There was also unrebutted expert testimony that Adams should be considered a biological male.

Adams filed suit in June 2017 in the Middle District of Florida. At the time, he was a “rising junior” at Nease. The trial was held in December 2018, resulting in Judge Corrigan’s 2018 decision, 318 F. Supp. 3^rd 1293. Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights. By then, case law in the 11th Circuit had long since recognized – in Glenn v. Brumby, 663 F.3d. 1312 (2011), a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.” The district judge concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys. The judge concluded based on the trial record that Adams was a boy who was entitled to use facilities intended for boys. Judge Corrigan also found a violation of Title IX, rejecting the school district’s argument that Title IX regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful. He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school and awarded him $1,000 in damages. The district promptly appealed to the 11th Circuit.

A three-judge panel voted 2-1 in August 2020, 968 F.3d 1286, to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds. The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling.

In a July 2021 decision, again 2-1, 3 F.4^th 1299, the same panel affirmed Judge Corrigan’s ruling but only on constitutional grounds, with the majority apparently hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity. But Pryor blocked the mandate again, and a majority of the active judges on the 11^th Circuit voted to vacate the panel decisions and reconsider the case by the full court, which then consisted of 12 judges. Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an eleven-judge bench convened to reconsider the case.

As Adams was a “rising junior” when he filed this lawsuit in June 2017, he was no longer a student at Nease High School when the en banc case was argued, and the issue of the injunction is effectively moot. Judge Corrigan’s 2018 decision had limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender students and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students. However, since the judge awarded Adams damages, the school district’s appeal is not moot.

Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.” The dissenting opinions point out that this is not really the question before the court, because the school district’s policy is based on sex as identified on enrollment papers, not “biological sex identified at birth,” and, more fundamentally, Adams is not challenging the right of the school district to maintain single-sex multi-user bathrooms. Rather, he is arguing that as a transgender boy, recognized as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy. Adams, in his state of transition, claims to be entitled to be treated the same as cisgender boys.

The underlying basis of Judge Lagoa’s opinion, of course, is that it is an article of faith among most Republican conservatives — the “party line,” as it were – that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician. This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using the surname “Adams.” Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissenting opinion, refers to Adams by pronouns consistent with his gender identity.

As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly-situated people. As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom. The majority of the court holds that there is no discrimination on the basis of sex and thus no equal protection violation. They also reject a a disparate impact theory, observing that equal protection is limited to intentional discrimination. They do accept, based on 11th Circuit precedent, that if there was discrimination, it would be subject to “heightened scrutiny,” but they find that the school district’s policy would survive that test based on the district’s concern for the privacy interests of the cisgender boys who don’t want a “biological girl” present in their bathrooms. They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also the contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases, such as Grimm and Whitaker.

Turning to Title IX, the court rejects the three-judge panel’s application of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to Title IX. In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964. This was because, the Court ruled, it is impossible to discriminate because of transgender status without discriminating because of sex. The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, such asTitle IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.

It is true that in the Bostock decision, Justice Neil Gorsuch, writing for the Court, asserted that the Court was deciding only the issue before it – whether a person discharged because they are gay or transgender can bring a discrimination claim under Title VII – and was not deciding anything about bathrooms or other statutes. But the logic of that decision has struck many lower federal courts, as well as state courts interpreting their own civil rights laws – as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination. The dissenters note and cite the relevant cases.

Judge Lagoa also found that because Title IX is a spending clause case (i.e., a case enacted by Congress to place conditions on the receipt of federal funding by educational institutions), the school district would have to have been on notice that accepting federal funding would obligate it to provide restroom access according to gender identity to transgender students, and the court found that this requirement was not satisfied, thus insulating the school district from Adams’s damage claim.

In addition to writing the opinion for the court, Judge Lagoa wrote a separate concurring opinion to focus on an issue not properly before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition. This separate opinion is totally unwarranted and inappropriate, first because the judge already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.

The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly. Judge Wilson emphasizes that the court’s narrow view of “biological sex” fails to take account of knowledge about divergent sexual identities, being so crudely reductionist that it creates all kinds of interpretive problems. How would the school district deal with an “intersex” student, for example? Judge Pryor’s dissent, the lengthiest, picks up from the detailed panel opinions by Judge Martin and points out the blatant fallacies strewn through Judge Lagoa’s opinion.

Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

Posted on: December 17th, 2020 by Art Leonard No Comments

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution. Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted. Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee. Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy. That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity. Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity. All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio. State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition. Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed. Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14^th Amendment, as well as their Free Speech rights under the 1^st Amendment. Having ruled in favor of the plaintiffs on their 14^th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1^st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright. The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record. Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate. The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification. On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy. Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing. Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so. What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances. A person who gets a legal name change can get a new birth certificate showing their new legal name. After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents. The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case. Furthermore, the state could attempt to appeal this ruling to the 6^th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn. Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

Federal Court Issues Preliminary Injunction against Enforcement of New York City Adult Establishment Zoning Regulations

Posted on: October 3rd, 2019 by Art Leonard No Comments

Continuing litigation efforts that date back a quarter of a century, a group of “gentlemen’s cabarets” (which the court alternatively describes as “strip clubs”) and adult bookstores located in Manhattan have brought suit to challenge the constitutionality of 2001 Amendments to the NYC Zoning Resolution as applied to “adult establishments.” Numerous prior assaults on this measure, first passed during the Giuliani Administration in an attempt by the City to sharply reduce the number of adult establishments and to relocate them away from residential districts or close proximity to religious institutions, schools and other places where minors tend to congregate, were largely unsuccessful once they proceeded to the appellate level. Surprisingly, however, given the City’s earnest attempts to beat back all challenges, U.S. District Judge William H. Pauley III relates that the City has not actively enforced the Resolution for eighteen years – effectively since the end of the Giuliani Administration. Mayors Bloomberg and De Blasio turned their attentions elsewhere. But the plaintiffs are concerned with the measure still on the books and the possibility it might be enforced against them in the future – thus this lawsuit. 725 Eatery Corp. d/b/a “Lace” v. City of New York, 2019 WL 4744218, 2019 U.S. Dist. LEXIS 169873 (S.D.N.Y., Sept. 30, 2019).

In this ruling, Judge Pauley grants the plaintiffs’ motion for a preliminary injunction against enforcement of the measure while the litigation goes forward on the merits. This is in some sense largely symbolic, in light of the City’s prolonged failure to enforce the measure.

The list of counsel accompanying the opinion goes on for two pages, and the judge mentions that in connection with the pending motions, “the parties have offered a Homeric record of affidavits, documentary evidence, and stipulations.” Most significant among the objections, perhaps, is that the Resolution was purportedly justified by a 1995 study of ‘secondary effects’ attributable to the presence of adult establishments, especially when several were located close together. The reality is that, as a result of early enforcement efforts during the Giuliani Administration together with economic, residential and commercial development activity in the City over the past twenty years, the studies are clearly out-of-date and no longer easily support the Council’s conclusion that the rather drastic restrictions on the siting of adult establishments is still necessary in terms of public order and impact on property values. Enforcement under Giuliani reduced the number of adult establishments and led to many of them significantly modifying their activities to try to avoid being labeled as adult establishments.

As Judge Pauley explains: “Tracing its origins to the City’s early 1990s crusade against adult entertainment businesses, this litigation has been ensnared in a time warp for a quarter century. During that interval, related challenges to the City’s Zoning Resolution have sojourned through various levels of the state and federal courts.” A major portion of the opinion is devoted to reciting in great detail the history of that litigation, from the initial 1995 enactment through the consequential 2001 amendments and a series of judicial decisions which culminated in a 2017 ruling by the New York Court of Appeals holding that the most recent version of the measure is constitutional, which was stayed until the Supreme Court denied review early in 2018. For the People Theatres of N.Y., Inc. v. City of New York, 29 N.Y.3d 340, 57 N.Y.S.2d 69, 79 N.E.3d 461 (N.Y. 2017).

This new law suit was brought by Manhattan establishments that would not be considered “adult establishments” under the 1995 Regulation (which was construed by the courts to exempt establishments that devoted less than 40% of their space or stock to adult uses) but would be considered “adult establishments” under the 2001 amendments (which broadened coverage to deal with alleged “sham” reconfigurations that the City claimed had resulted in adult establishments continuing to operate while evading coverage). In this case, the plaintiffs alleged deprivations of their 1^st and 14^th Amendment rights, arguing that if the 2001 Amendment were actively enforced, they “would decimate – and have already dramatically reduced – adult-oriented expression.” The plaintiffs pointed out, restricting themselves to Manhattan numbers, that “the fifty-seven adult eating or drinking establishments existing at the time the City adopted the 2001 Amendments have now been culled to as few as twenty such establishments. And for their part, the bookstore plaintiffs claim that of the roughly forty adult bookstores with booths that existed at the time of the 2001 Amendments, only twenty to twenty-five bookstores currently exist.” They also pointed out that of these bookstores, virtually none are located in “permissible areas” under the 2001 Amendments. The bookstore plaintiffs also pointed out that if the City were to actively enforce the 2001 rules, there would be very few places in the City, much less Manhattan, where such businesses could operate, essentially reduced to “undeveloped areas unsuitable for retail commercial enterprises, such as areas designated for amusement parks or heavy industry or areas containing toxic waste.” They also noted yet again that the study of “secondary effects” conducted by the City prior to enactment of the 1995 measure has never been updated, never been validated in light of the 40% rule, and had addressed a Cityscape radically different from what exists today.

In deciding whether to grant a preliminary injunction – and noting that the City is not actively enforcing the current regulations – the court addressed several crucial factors: whether enforcement would inflict an irreparable injury on the plaintiffs, the likelihood the plaintiffs would succeed on their constitutional arguments, the balance of hardship on the plaintiffs and the City, and the Public Interest.

First, Judge Pauley concluded, “assuming that the 2001 Amendments – which purportedly impose a direct limitation on speech – violate the Constitution, Plaintiffs have demonstrated irreparable harm.” This conclusion was based on many court opinions finding that monetary damages are insufficient to compensate somebody for a loss of their constitutional rights.

Turning to likelihood of success on the merits, the judge found that the weak link in the defendants’ opposition was the reduction of the number of locations where adult establishments could operate if the 2001 Regulations were enforced. Precedents require that any regulation of adult uses must, because of its impact on freedom of speech, leave “reasonable alternative channels” for the speech to take place and be heard. In other words, the zoning rules must allow enough appropriate locations so that adult businesses can operate and members of the public can access their goods and services. “On this preliminary record,” wrote Pauley, “this Court is skeptical that the 2001 Amendments leave open sufficient alternative avenues of communication. With respect to the outer boroughs, the DCP [Department of Consumer Protection] generated a map for each borough identifying the areas allowing and prohibiting adult establishments as of October 31, 2019. . . . Compared to the maps the DCP created in connection with the 1995 Regulations, the 2019 maps appear to offer slightly less available space for adult entertainment. But the City’s maps do not seem to indicate how the amount of available land would be affected by the requirement that adult establishments be located at least 500 feet from sensitive receptors or other adult establishments.” After a critical analysis of the evidence presented, Pauley concluded that “plaintiffs have sufficiently demonstrated at this stage that the enforcement of the 2001 Amendments will deny them adequate alternative channels to offer their adult expression.”

Finally, the court determined “that the balance of hardships weighs in favor of Plaintiffs, and the issuance of preliminary injunctive relief would not disserve the public interest.” The plaintiffs submitted affidavits showing that enforcement would cause them to lose their businesses, breaching contracts and leases, having to lay off employees, and suffering the financial and time costs of relocation. Furthermore, since the City has not been actively enforcing these rules for eighteen years, according to the court, a preliminary injunction would not result in any harm to the City. “While this Court credits Defendants’ contention that the 2001 Amendments are designed to abate the pernicious secondary effects of adult establishments,” wrote Pauley, “it also recognizes that the City ‘does not have an interest in the enforcement of an unconstitutional law.’”

Pauley’s concluding remarks leave little doubt about his skepticism about the further need for the adult zoning rules as last amended in 2001. “The adult-use regulations that are the subject of these now-revived constitutional challenges are a throwback to a bygone era,” he wrote. “The City’s landscape has transformed dramatically since Defendants last studied the secondary effects of adult establishments twenty-five years ago. As Proust might say, the ‘reality that [the City] had known no longer existed,’ and ‘houses, roads, avenues are as fugitive, alas, as the years,’” quoting from Remembrance of Things Past (1913). But, the judge was careful to caution that this was not a final ruling on the merits, and that issuing the preliminary injunction “says nothing about whether Plaintiffs will in fact succeed on the merits of their claims.” He set a status conference for October 31, and directed the parties to file a “joint status report” by October 24 “detailing their respective positions on how to proceed with the balance of this action.” He also directed that they confer on a discover plan as the case moves forward. Of course, in light of the passage of time and the changes in the City, what would make sense would be for the City to negotiate a settlement that would involve substantial revisions to the adult-use zoning provisions to reflect the changed situation.

The number of law firms with a piece of this case is altogether too long to list here.

2nd Circuit Holds That It Was Not “Clearly Established” That Sexual Orientation Discrimination in Public Employment is Actionable Under the Equal Protection Clause Prior to Obergefell and Windsor

Posted on: September 8th, 2019 by Art Leonard No Comments

In the course of deciding an appeal by some supervisory public employees of a district court’s refusal to accord them qualified immunity from a discharged employee’s claim of discrimination because of perceived sexual orientation (that took place in 2010), a panel of the U.S. Court of Appeals stated in Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (Aug. 12, 2019), that it was not then “clearly established” by the Supreme Court or the 2^nd Circuit prior to the rulings in U.S. v. Windsor and Obergefell v. Hodges that sexual orientation discrimination is actionable under in a 42 U.S.C. Sec. 1983 claim alleging a violation of the Equal Protection Clause.

The opinion for the panel by Circuit Judge Jose Cabranes suggests that it might be “possible today that sexual orientation discrimination in public employment may be actionable under Section 1983,” but at the time of the conduct challenged in this case “such a constitutional prohibition was not yet ‘clearly established’” so the defendants were entitled to qualified immunity from the claim. In a footnote, Judge Cabranes acknowledged that as early as 1996, in Romer v. Evans, 517 U.S. 634, and again in 2003, in Lawrence v. Texas, 539 U.S. 558, the Supreme Court “had already begun to scrutinize laws that reflected ‘animosity’ toward gays,” but in this case the plaintiff had not alleged “such class-based animosity or desire to harm.” He also noted that under Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the plaintiff could not bring a “class of one” equal protection case “simply on the basis that her termination was individually arbitrary.”

On March 10, 2010, Binghamton University’s Athletic Director, James Norris, informed Elizabeth Naumovski, then assistant coach of the women’s basketball team, that she would be discharged if she did not resign. She resigned and filed her discrimination charges with the NY State Division of Human Rights and the EEOC. After exhausting administrative remedies against the school, she filed suit in federal court, adding discrimination claims under the Constitution against the Athletic Director and the Head Coach of the team as well as the university employer. Norris and Scholl sought unsuccessfully to get U.S. District Judge David Hurd to dispose of the claims against them on grounds of qualified immunity, as part of his overall ruling on motions for summary judgment, and this appeal to the 2^nd Circuit concerns Judge Hurd’s failure to grant their motions, which he implicitly did by denying them summary judgment.

Naumovski, a single woman in her thirties, became the subject of rumors concerning her possible relationship with a woman on the team, identified in the opinion as J.W. Complaints from other students that Naumovski was showing favoritism to this woman came to the head coach and the then-assistant athletic director, James Norris, who, according to Judge Cabranes, “states that he understood the rumors to refer to a relationship of favoritism between a coach and a student-athlete, rather than to a sexual relationship between the two.” Norris discussed these rumors with the Athletic Director, “who assured him that the allegations were the baseless fabrications of disgruntled former members of the Binghamton Athletics community.” Norris was promoted to the athletic directorship on September 30, 2009.

In response to the persisting rumors during the fall term of 2009, Head Coach Nicole Scholl “imposed various restrictions on interactions between coaches and student-athletes to avoid any perception of impropriety.” According to Naumovski’s allegations, “As a result of the increased scrutiny triggered by these restrictions, Naumovski began to suffer from depression and stress-induced weight loss.” She met with Norris to address the rumors, and claims he told her that “your problem is that you’re a single female in your mid-30s,” implying that the rumors were due to a perception that she was a lesbian. Norris denies having made that comment, a potential material fact in the overall scheme of the litigation, in terms of the school’s potential liability.

The rumors persisted into 2010, as Norris continued to receive complaints about “favoritism” by Naumovski towards J.W. Friction developed between Naumovski and Head Coach Scholl, who felt that “Naumovski was trying to undermine her leadership of the team.” Wrote Cabranes, “Naumovski does not deny tension between herself and Scholl; rather, she claims that any such tension ceased after a February 9, 2010 meeting with Scholl. Naumovski further claims that Scholl and Norris never expressed any additional concerns about her coaching performance after that time.” However, during a phone call on February 21, Scholl and Norris agreed that Naumovski’s employment should be terminated at the end of the basketball season in March. “The decision was purportedly based on Naumovski’s demonstrated favoritism toward certain student-athletes and the disruptive impact of her workplace conflicts with Scholl,” writes Cabrances, relating the defendants’ claims. Meanwhile, Norris continued to receive student complaints and things came to a head when J.W.’s family received “an anonymous, vulgar letter accusing her of ‘screwing’ Naumovski,” which J.W. told Naumovksi about, and which led J.W.’s mother to call Norris; it is disputed whether the letter was mentioned in that phone call. However, a week after that call, Norris informed Naumovski that she was being fired for performance reasons, but she could resign to forestall being fired, which she did.

Naumovski’s suit alleges discrimination based on her sex, perceived sexual orientation, and national origin (Canadian), in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Equal Protection Clause and the First Amendment (42 USC 1983), as well as the NY Constitution and NY Human Rights Law. Defendants moved for summary judgment after discovery. “The motion remained pending for several years,” write Cabranes, not being decided until April 17, 2018, when District Judge Hurd granted summary judgment to Binghamton University and the State University of New York on all constitutional claims but allowed statutory claims to proceed to trial. (Perhaps Judge Hurd was waiting to rule on the motions for a final resolution by the Circuit of whether sexual orientation claims are actionable under Title VII, which emerged with the Zarda v. Altitude Express en banc ruling in February 2018.) As to the individual defendants, Scholl and Norris, Hurd dismissed all claims except for Naumovski’s sex-based disparate treatment and hostile work environment claims under 42 USC 1983 (Equal Protection), failing to address the issue of their qualified immunity from constitutional claims even though they sought to invoke immunity in their summary judgment motion. Judge Hurd subsequently denied a motion by Norris and Scholl for reconsideration on the immunity argument as untimely under local rules, asserting that it did not raise any new issues, and they appealed to the 2^nd Circuit.

Judge Cabranes devoted considerable space in his opinion to explaining the different proof requirements on the statutory claims and the constitutional claims. In particular, he noted, under Title VII, the plaintiff can win by showing that her sex or perceived sexual orientation was a “motivating factor” for discrimination, but on the constitutional equal protection claim, her burden would be to show that it was a “but-for” factor. He also devoted a portion of the opinion to itemizing the various other ways in which the statutory and constitutional claims receive different treatment, finding that the district court seems to have conflated the two separate modes of analysis in its decision. Furthermore, he pointed out that the statutory claims under employment discrimination law run only against the institutional employer, not against individuals, while the constitutional claims could be asserted against individuals who are “state actors,” but who enjoy qualified immunity from personal liability unless it is “clearly established” by appellate precedent that the discrimination with which they are charged is, if proven, unconstitutional.

Turning to the subject of the appeal, Judge Hurd’s implicit denial (or failure to recognize) qualified immunity from the constitutional claims for Norris and Scholl, Cabranes noted that the 2^nd Circuit’s review of the district court’s “implicit” rejection of the qualified immunity claims “is complicated by several factors. First, the District Court never addressed the claims of qualified immunity in its Memorandum-Decision and Order; it is therefore impossible to review its specific reasoning in denying relief on this ground. Second, while both the Complaint and the District Court’s Memorandum-Decision and Order conclude that Defendants’ alleged conduct constitutes sex discrimination (either through disparate treatment or subjection to a hostile environment), neither explains precisely how Defendants’ conduct can be so construed. Third, the District Court opinion conflates its analysis of Naumovski’s Title VII and Sec. 1983 claims, rendering our task of reviewing only the Sec. 1983 claims more difficult.” Attempting to “reconstruct the logic” of the District Court’s denial of immunity to Scholl and Norris on the constitutional claims, the court concluded that “no theory can sustain the District Court’s implicit denial of Defendant’s qualified immunity.”

First addressing the sex discrimination claim, the court found that there was a lack of evidentiary allegations to support the claim, apart from Naumovski’s allegation about Norris’s remark concerning her status as a single woman in her 30s, which the court concluded did not “constitute sufficient evidence to make out a case of employment discrimination,” characterizing it as “the sort of ‘stray remark’ that is insufficient to support an inference of discriminatory intent.” While Judge Hurd referred to “other indicia” of discrimination intent, the appeals court was not convinced: “The only ‘other indicia,’ however, is evidence suggesting that Scholl and Norris interpreted the rumors as alleging a sexual relationship between Naumovski and J.W., rather than mere favoritism from one to the other. The invocation of such evidence is unavailing. Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women in general or any subcategory of female employees in particular,” wrote Cabranes. Thus, the conclusion that summary judgment should have been granted on the sex discrimination claim.

The court also discussed the possibility that Naumovski could succeed on a sex-stereotyping claim; i.e., “Norris and Scholl stereotyped Naumovski based on her sex (possibly in combination with other characteristics) as more likely to have engaged in a romantic or sexual relationship with J.W. Defendants then fired Naumovski (at least in part) because of their wrongful and discriminatory belief that she engaged in sexual impropriety with a student and, subsequently, attempted to conceal that stereotyping played any role in their termination decision.” While the court agreed that such a theory might work in some cases, “Naumovski cannot succeed on such a theory” because of the “but-for” proof requirement for a constitutional violation. In order to prevail, “Naumovski must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone. To be sure, there may well be cases in which misconduct findings based on sex stereotyping meet the ‘but-for’ discrimination standard,” Cabranes continued. “Here, however, we do not think that the evidence, even construed in the light most favorable to Naumovski, satisfies that standard.” Cabranes gives an extended explanation for this conclusion, noting in particular that “Naumovski does not materially dispute that Scholl’s personality and coaching style clashed with her own,” which on its own would be a legitimate reason to let go an assistant coach who was an at-will employee.

Turning to the perceived sexual orientation discrimination claim, Cabranes came to the issue of most direct relevance to Law Notes: whether public officials enjoy qualified immunity from constitutional liability for discriminating against their employees because of actual or perceived sexual orientation. He pointed out that if the district court was relying on the 2^nd Circuit’s 2018 Zarda decision for this proposition, “it erred for at least two reasons.” First, Zarda was a statutory interpretation case under Title VII, not a constitutional case, thus the Circuit’s decision that discrimination “because of sex” under Title VII includes discrimination because of sexual orientation was not a ruling the sexual orientation claims should be treated the same as sex discrimination claims under the 14^th Amendment. Second, the conduct at issue in this case (2009-2010) predated Zarda by many years. Given the 2^nd Circuit’s pre-Zarda caselaw, Cabranes pointed out, at the time Naumovski was fired, “the ‘clearly established law’ … was that sexual orientation discrimination was not a subset of sex discrimination.”

“Nor could the District Court rely on freestanding constitutional principles separate from Zarda,” continued Cabranes. “To date, neither this court nor the Supreme Court has recognized Sec. 1983 claims for sexual orientation discrimination in public employment. Moreoever, when the conduct in this case occurred, neither of the Supreme Court’s landmark same-sex marriage cases – United States v. Windsor and Obergefell v. Hodges – had been decided. It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect.” At this point, Cabranes wrote a footnote acknowledging the existence of Romer and Lawrence, but distinguishing them based on Naumovski’s factual allegations. Cabranes’ opinion does not explicitly state that a public official would not enjoy qualified immunity today from an adverse personnel decision based on sexual orientation, but he implies that after Windsor and Obergefell, “state distinctions based on sexual orientation” are “constitutionally suspect,” a point that some scholars have argued, attempting to give more teeth to Justice Kennedy’s opinions in those cases than some might see in them. To be clear, neither of those cases explicitly states that government distinctions based on sexual orientation are to be treated the same as sex discrimination cases and enjoy heightened scrutiny under the 14^th Amendment. Justice Kennedy did not employ that vocabulary, and arguably placed more weight on the liberty interest in marriage in those cases.

The court also found that Norris and Scholl would clearly enjoyed qualified immunity from a claim that their decision relied on biased student claims against Naumovski, and also that a constitutionally-based hostile environment claim based on sex or perceived sexual orientation in a public employment context was not clearly actionable under 42 USC 1983, as the precedential basis for such claims has been developed thus far only under Title VII.

Summarizing the Court of Appeals holding, Cabranes wrote that Section 1983 claims for discrimination in employment require plaintiffs to establish that the defendants’ discriminatory intent was a “but-for” cause of the adverse employment action, that because of the intent requirements under the Equal Protection clause, a Section 1983 claim for employment discrimination “cannot be based on a respondeat superior or ‘cat’s paw’ theory to establish a defendant’s liability (thus ruling out liability for Scholl and Norris based on complaints by discriminatory students), and defendants were entitled to qualified immunity because, “even when interpreted in the light most favorable to Naumovski, the record cannot support the conclusion that they violated her ‘clearly established’ constitutional rights.”

Naumovski is represented by A. J. Bosman of Rome, N.Y. Judge Cabranes was appointed by President Bill Clinton. The other two judges on the 2^nd Circuit panel were Ralph Winter (Reagan) and Renee Raggi (George W. Bush).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard 2 Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans. The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case. And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition. It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple. An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5^th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5^th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions. The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy. Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1^st Amendment by establishing particular religious beliefs as part of the state’s law. The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5^th Circuit.

The state appealed the grant of preliminary injunction to the 5^th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court. In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5^th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29. The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.” Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect. This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5^th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5^th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5^th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7^th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14^th Amendment, announced a settlement. Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration. Since the 4^th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4^th Circuit’s ruling and sent the case back to the 4^th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue. Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex. He sued the district under Title IX and the Equal Protection Clause. U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal. See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7^th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14^th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities. The school district petitioned the Supreme Court on August 25 to review the 7^th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued. According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7^th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14^th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity. However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7^th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7^th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

Posted on: September 2nd, 2017 by Art Leonard No Comments

On August 2, the Richmond-based 4^th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the appeal moot. Did Grimm still have standing to seek the injunctive relief that he sought? Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158. The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether Senior U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board and denied Grimm’s motion for a preliminary injunction. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier in July whether this is so, and the court concluded that more fact-finding was necessary before the issue of its jurisdiction could be decided. A week later, however, Grimm’s lawyers from the ACLU agreed with the School Board to end the appeal concerning the preliminary injunction, submitting a stipulation to the 4^th Circuit to that effect, resulting in a one-sentence order by that court dismissing the appeal. Grimm v. Gloucester Bounty School Board, 2017 U.S. App. LEXIS 16697 (4^th Cir. Aug. 30, 3017). But they did not agree to end the case, instead filing an amended complaint on August 11, of which more details follow below.

Grimm’s mother originally filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination forbidden under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14^th Amendment. Grimm sought a preliminary injunction so he could resume using the boys’ restrooms at the high school while the case was pending. The Board moved to dismiss, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution. Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, while reserving judgment on the 14^th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal. While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated Title IX.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4^th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations. The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction. Shortly thereafter, the Departments of Education and Justice sent a joint “Dear Colleague” letter to all the nation’s public schools that receive federal funds, more formally stating their position on Title IX coverage of the transgender facilities access issue and other issues relevant to equal educational opportunity for transgender students. Responding to the Circuit’s remand, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year. But that was not to be. Even though Judge Doumar and the 4^th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4^th Circuit’s ruling. Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4^th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017. Meanwhile, Donald Trump was elected president, took office in January, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education. Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 they announced that the Departments of Education and Justice were “withdrawing” the Obama Administration’s “Dear Colleague” letter and issuing a new one that, in effect, took no position on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government. The Supreme Court reacted to this development by granting the Solicitor General’s subsequent request to cancel the oral argument, vacated the 4^th Circuit’s decision, and sent the case back to the 4^th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4^th Circuit directed the district court to quash the preliminary injunction and tentatively scheduled an argument to be held in September. After Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2. “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.” Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit. He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally. “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.” The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.” The factual record in this case consisted of the sworn allegations that were presented to the district court in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school. Thus, the 4^th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.” They were not sending the case back for a new ruling by the district court on the merits, just for a ruling on the question of mootness after additional fact-finding. Any determination by Judge Doumar that the case was moot could, of course, be appealed by Grimm.

But litigating over the issue of mootness with respect to the preliminary injunction did not strike the ACLU as the best approach at this point in the litigation, so it secured agreement from the School Board to move the 4^th Circuit to dismiss the appeal, and proceeded to file an amended complaint. The new complaint supplements the original complaint with factual allegations bringing the story up to date, culminating with the following: “As an alumnus with close ties to the community, Gavin will continue to be on school grounds when attending football games, alumni activities, or social events with friends who are still in high school.” This would support his continuing personal stake in the issue of appropriate restroom access at the school. The complaint restates 14^th Amendment and Title IX as sources of legal authority for the argument that the school board’s policy violates federal law. The request for relief is reframed to reflect Grimm’s alumni status, seeking a declaration that the policy is illegal, nominal damages (symbolic of the injury done to Grimm by denying him appropriate restroom access), a permanent injunction allowing Grimm to use the same restrooms as “other male alumni,” his reasonable litigation costs and attorneys’ fees, and “such other relief as the Court deems just and proper.” The school board can be expected to move to dismiss the amended complaint with the argument it made to the court in suggesting that the case was moot, but this time the standing question will be litigated solely with respect to Grimm’s alumni status going forward.

It appears from the docket number stamped on the amended complaint by the court clerk’s office, 4:15-cv-00054-AWA-DEM, that the case is now assigned to District Judge Arenda L. Wright Allen, who was appointed by President Obama in 2011. Judge Doumar, 87, who issued the earlier rulings for the district court, is a senior judge who was appointed by Ronald Reagan in 1981.

While this litigation drama was unfolding in Gloucester County, the Chicago-based 7^th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. The Kenosha School District filed a petition for certiorari with the Supreme Court on August 25. So it is distinctly possible, that the action on this issue will move there and this case may well end up being put “on hold” by the court if the Supreme Court agrees to hear the Kenosha appeal.

Virginia Federal District Court to Determine Whether Gavin Grimm Case is Moot

Posted on: August 15th, 2017 by Art Leonard No Comments

Grimm’s mother filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination protected under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14^th Amendment. The Board moved to dismiss the case, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution. Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, reserved judgment on the 14^th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal. While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated the ban on sex discrimination.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4^th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations. The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction. Reacting to the Circuit’s decision, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year. But that was not to be. Even though Judge Doumar and the 4^th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4^th Circuit’s ruling. Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4^th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017. Meanwhile, Donald Trump was elected president, took office in January, 2017, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education. Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 announced that the Departments of Education and Justice were “withdrawing” the document that had been submitted to the district court and, in effect, taking no position at that time on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government. The Supreme Court reacted to this development by cancelling the oral argument, vacating the 4^th Circuit’s decision, and sending the case back to the 4^th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4^th Circuit tentatively scheduled an argument to be held in September, but then, after Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally. “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.” The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.” The factual record in this case consists of the sworn allegations that were presented to the district court back in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school. The parties’ assertions in their briefs are just that: merely argumentative assertions, not sworn statements of fact or actual testimony submitted in court. Thus, the 4^th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.” They are not sending the case back for a new ruling on the merits, just for a ruling on the question of mootness after additional fact-finding. Any determination by Judge Doumar that the case is moot could, of course, be appealed by Grimm, so final resolution of this case may still take some time, and it is possible that the courts will resolve the mootness issue against the Board.

If the mootness issue is decided in Grimm’s favor and the case returns to the 4^th Circuit for a ruling on whether the Title IX claim was appropriately dismissed, it may yet provide a vehicle for the ACLU LGBT Right Project and the ACLU Foundation of Virginia, which represent Grimm, to get this issue back before the Supreme Court, although if they are ultimately successful in the 4^th Circuit, that would depend on the School Board persisting in seeking Supreme Court review. However, this issue is being litigated in other places, in some cases involving elementary school students, and it is possible that one of the other cases will get far enough along to knock at the Supreme Court’s door long before the plaintiff has graduated. Indeed, while this litigation drama was unfolding in Gloucester County, the Chicago-based 7^th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. It seems only a matter of time before it gets to the Supreme Court, regardless of what the Trump Administration may say about the issue, unless Congress intervenes by amending Title IX, an outcome that is unlikely unless the Senate Republicans abolish the filibuster rule for ordinary legislation, as Trump has been asking them to do, so far without success.

Federal Court Awards Preliminary Restroom Access Relief to Transgender Students on Their Constitutional Claim

Posted on: February 28th, 2017 by Art Leonard No Comments

Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.

Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.” A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.

On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.

Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects. Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate. Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly. It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then. Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.

The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms. The school also has established numerous single-user restrooms that are accessible to students. The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.

Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy. Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.” He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.

Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.” Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District. As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society. More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School. Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”

That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak. The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions. Conversely, others in the restrooms are shielded from such views.” And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.

The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”

Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue. The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary. “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”

He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it. He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.

In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.

Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation. With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case. Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits. What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling. Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision. It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it. Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs. If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay. (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)

Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.

In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.

Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..

Texas Appeals Court Denies Constitutional Challenge to “Online Impersonation” Statute in Manhunt.net Case

Posted on: September 1st, 2016 by Art Leonard No Comments

Who knew? It is potentially a crime in Texas, and apparently several other states, to pose as somebody else on social media sites like Manhunt.net, and this does not violate anybody’s 1st Amendment rights, held a panel of the Texas 5th District Court of Appeals in Ex parte Bradshaw, 2016 Tex. App. LEXIS 9203, 2016 WL 4443714 (Aug. 23, 2016).

According to the opinion by Justice Robert M. Fillmore, Michael Dwain Bradshaw has been charged with violating Texas Penal Code Sec. 33.07(a), titled “Online Impersonation.” The statute provides that a person “commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to (1) create a web page on a commercial social networking site or other Internet website; or (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.” The indictment charges Bradshaw with “intentionally or knowingly using Joel Martin’s name or persona to post or send one or more messages on or though manhunt.net, an Internet website, without obtaining Martin’s consent, and with the intent to harm Martin.” Justice Fillmore does not get any more specific about the factual allegations against Bradshaw, devoting the entire balance of the opinion to rejecting his constitutional claims. Bradshaw, represented by attorneys Mark W. Bennett and Toby L. Shook, filed a pretrial application for writ of habeas corpus, seeking to get the indictment quashed on the ground that the statute is facially unconstitutional. A Dallas County Criminal Court judge denied the petition, and Bradshaw appealed to the 5^th District court.

Bradshaw’s first argument was unconstitutional overbreadth, claiming that as worded the statute has the effect of “restricting a substantial amount of protected speech based on the content of the speech.” The state argued that the statute regulates only conduct and unprotected speech, and that any incidental effect on protected speech “is marginal when weighed against the plainly legitimate sweep of the statute.” Justice Fillmore noted Supreme Court precedents describing the overbreadth doctrine as “strong medicine that is used sparingly and only as a last resort,” reserved for statutes presenting a “realistic” danger of inhibiting constitutionally protected speech. The level of judicial scrutiny in such cases depends on whether the statute is content-based – that is, coverage triggered by the substance of the speech involved. The court concluded that the “vast majority” of speech covered by the statute is not protected by the 1^st Amendment, and agreed with the state’s argument that the statute is mainly about regulating conduct.

“Impersonation is a nature-of-conduct offense,” wrote Fillmore, which “does not implicate the First Amendment unless the conduct qualifies as ‘expressive conduct’ akin to speech.” Bradshaw contended that “using another’s name or persona to create a webpage, post a message, send a message” is inherently expressive conduct, but the court did not buy this argument, finding that the focus of the statute was on how somebody used another’s name or image: “Any subsequent ‘speech’ related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment,” wrote Fillmore. As such, the level of judicial review of the statute would not be strict scrutiny – reserved for content-based speech restrictions – but rather “intermediate review” requiring the government to show that the statute advances a significant state interest. Contrary to Bradshaw’s argument, the court found the statute to be content-neutral. It didn’t matter whose name or persona was being appropriated; it was the fact of appropriation of identity, which the court saw as conduct, that was being punished, and then only if it was being done for purposes specified in the statute.

Looking to the legislative history of the statute, Justice Fillmore found Texas House committee hearings generating a report that the purpose of the statute was “to ‘deter and punish’ individuals who assumed the identity of another and sent false, harassing, or threatening electronic messages to the victim or a third party who was unaware of the perpetrator’s true identity. The committee noted that online harassment had resulted in suicide, threats of physical or mental abuse, and more, but ‘current Texas law does not provide a means of prosecuting some of the most egregious of these acts. There is nothing in the legislative history,” wrote Fillmore, “that would suggest the legislature was targeting or expressing its disagreement with any particular topic or viewpoint by enacting section 33.07(a).” And the court concluded that addressing this problem did involve a significant governmental interest of “protecting citizens from crime, fraud, defamation or threats from online impersonation.”

“It also serves a significant First Amendment interest in regulating false and compelled speech on the part of the individual whose identity has been appropriated,” wrote Fillmore, dismissing the “hypotheticals” posed by Bradshaw in his argument as insubstantial “in comparison to the statute’s plainly legitimate sweep over unprotected speech and conduct.”

Bradshaw also attacked the law under the 14^th Amendment Due Process Clause as unduly vague, not giving specific enough warning to people about what conduct crossed the line of legality. In this case, the court found, the legislature had avoided any vagueness problem by including elsewhere in the Texas Penal Code a definition of “harm” generally as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.” More specifically, Chapter 33 of the Penal Code, which contains the challenged statute, has its own definition of “harm” that includes harm to computer data and “any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.” Noting that harm is a word in common use, the court also cited to dictionaries, concluding that a “person of ordinary intelligence” would have “fair notice of what the statute prohibits.”

Finally, Bradshaw contended that Texas could not regulate conduct involving the internet because this “unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere,” invoking a legal doctrine called the Dormant Commerce Clause. Fillmore rejected the contention that the Texas law burdens interstate commerce. “Evenhanded local regulation intended to effectuate a legitimate local public interest that has only incidental effects on interstate commerce will be upheld,” he wrote, “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Here, he observed, the court had found that Texas has a significant interest in protecting its citizens. “It is difficult to envision how interstate commerce is benefitted by the conduct proscribed by section 33.07(a),” wrote Fillmore, “and we believe the burden of the statute on interstate commerce is small.” Thus, the writ was denied and the prosecution can proceed.

Which leads the reader to speculate about the facts of this case. Did Bradshaw use Martin’s picture or name to cruise on Manhunt.net, to lure people into compromising situations, or to engage in conduct that would damage Martin’s reputation or subject him to liability or prosecution if attributed to him? If this case goes to trial and produces written opinions or attracts media attention, perhaps we will find out. If, as is true in the overwhelming majority of criminal prosecutions, Bradshaw accepts a plea bargain offered by the prosecution, we may never find out.

New York Law School

Art Leonard Observations

Posts Tagged ‘14th Amendment’