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Federal Judge Refuses to Dismiss Michigan Transgender ID Case

Posted on: November 17th, 2015 by Art Leonard No Comments

A federal judge has refused to dismiss a claim by six transgender Michiganders that a state policy governing changes of sex designation on driver’s licenses and personal identification cards violates their constitutional privacy rights.  The November 16 ruling in Love v. Johnson, 2015 U.S. Dist. LEXIS 154338, 2015 WL 7180471 (E.D. Mich), by Senior U.S. District Judge Nancy G. Edmunds, finds that transgender people have a fundamental right of privacy under the Due Process Clause of the 14th Amendment regarding their gender identity, which right appears to be heavily burdened by the state policy.

In 2011, Michigan Secretary of State Ruth Johnson adopted the following policy:  “An applicant may request to change the sex on their driver license or personal ID card.  The individual must provide a certified birth certificate showing the sex of the applicant.  A birth certificate is the only document accepted as proof to change an individual’s sex.  A U.S. passport cannot be accepted as proof of a sex change.”

According to the plaintiffs, this policy makes it very difficult for many transgender people to obtain such a change.  For one thing, people born in a state that refuses to issue replacement birth certificates for transgender individuals are stuck; they can never get an appropriate state government ID in Michigan.  (Such an ID is required, among other things, for voting.)  For another, people born in states that require gender reassignment surgery as a prerequisite may be stuck as well, since such surgery may not be available to them for financial or other reasons.  Indeed, that is the case in Michigan, which requires people to undergo sex-reassignment surgery to get a new birth certificate.

By contrast, the State Department does not require sex-reassignment surgery as a prerequisite to get an appropriate passport.  The Department will accept a doctor’s letter certifying that the individual “has had appropriate clinical treatment for gender transition,” without any specification of particular treatment.  Many  other states now have similarly permissive requirements to issue driver licenses or non-driver ID cards.

The consequences of carrying a driver’s license or state ID that does not correctly identify the bearer’s gender are many.  Encounters with police officers and security officers are only the most obvious.  In their affidavits opposing the state’s dismissal motion, the plaintiffs recount a wide range of circumstances in which they have encountered demeaning or antagonistic responses when complying with requests to show ID, including when voting or attempting to cash a check.  Every such occasion is an “outing” with respect to information they prefer to keep confidential, and they cite the incidence of violence against transgender people as a looming threat when their status is thus revealed involuntarily.

Judge Edmunds rejected the state’s argument that plaintiffs had not presented a claim of constitutional dimensions.  She found a wide range of precedents, including decisions from the 6th Circuit that would be controlling in a federal case in Michigan, recognizing privacy interests in medical information and sexually-related information.  In addition, she relied on a decision by the 2nd Circuit in a case involving a transgender prison inmate, Powell v. Schriver, where the court recognized in 1999 that the “hostility and intolerance” against transgender people bolstered its conclusion that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.”  That court based its ruling on the “bedrock principle” that “there exists in the Constitution a right to privacy protecting the individual interest in avoiding disclosure of personal matters,” and a recognition that a transgender person “potentially exposes herself to discrimination and intolerance” when forced to reveal this information.

Edmunds, appropriating language from the prior 6th Circuit case, found “no reason to doubt that where disclosure of this highly intimate information may fall into the hands of persons harboring such negative feelings, the Policy creates a very real threat to Plaintiffs’ personal security and bodily integrity.”

Since a fundamental right is involved, Edmunds observed that the state could only win this case if it could show a compelling interest, and that the policy was “narrowly drawn to further that interest.,” which requires that it be the least restrictive way to achieve the state’s goal.  In this case, she wrote, the state “vaguely identifies two purported interests — albeit not in the context of a fundamental right — in support of the Policy: (1) ‘maintaining accurate state identification documents’ to ‘promote effective law enforcement’ and, (2) ensuring ‘that the information on the license is consistent with other state records describing the individual.”

The judge found that the challenged policy “bears little, if any, connection to Defendant’s purported interests, and even assuming it did, there is no question that requiring an amended birth certificate to change sex on one’s license is far from the least restrictive means of accomplishing the state’s goal.  Indeed, as Plaintiffs point out, ‘because of the Policy, the sex listed on their licenses fails to match their appearance and the sex associated with their names.’  In this way, the Policy undermines Defendant’s interest in accurately identifying Plaintiffs to ‘promote law enforcement.'”  She pointed to a 2012 decision by an Alaska trial court criticizing a similar policy adopted in that state, which observed that the policy produces licenses that are inaccurate for identification purposes, causing inconvenience and worse in the everyday lives of transgender people.

As to the rejection of a passport as documentation of gender, Judge Edmunds wrote, “Defendant fails to articulate how this two-tiered system promotes the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.'”  Why should a person be required to carry a driver’s license that contradicts her passport as to her gender?

The plaintiffs alleged that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery.  “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” wrote Edmunds.  Thus, at this point in the case, the court was unwilling to conclude as a matter of law that the policy “narrowly serves the state’s interest in maintaining ‘accurate’ identification documents or promoting effective law enforcement.”

The plaintiffs had made other constitutional claims, but Judge Edmunds decided that it was unnecessary to rule on them at this point.  So long as she had identified one claim on which the plaintiffs were entitled to maintain their legal challenge to the policy, the state’s motion to dismiss should be denied.  “Should future developments require the Court to rule on the viability of Plaintiffs’ remaining claims,” she wrote, “Defendant may seek leave to renew her motion at that time.”

Judge Edmunds’ refusal to dismiss the case puts the plaintiffs in a strong position to negotiate a change to the policy.  If negotiations fail, they can probably count on winning this case through a motion for summary judgment unless the state can come up with something better than its pathetic arguments in support of its motion to dismiss.

The plaintiffs are Ermani Love, Tina Seitz, Codie Stone, E.B., A.M., and K.S.  Their attorneys include Daniel S. Korobkin, Michael J. Steinberg and Jay Kaplan of the ACLU Foundation of Michigan in Detroit, John A. Knight of the ACLU Foundation in Chicago, Illinois, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.

Oklahoma Federal District Court Declares Anti-Gay Marriage Amendment Unconstitutional

Posted on: January 15th, 2014 by Art Leonard No Comments

Yet another federal district judge has declared a state constitutional amendment that bans same-sex marriages an unconstitutional infringement of rights under the 14th Amendment of the U.S. Constitution. On January 14, Senior U.S. District Judge Terence C. Kern, who has been dealing with the case of Bishop v. United States since 2004, held that the constitutional amendment adopted by an overwhelming vote of Oklahoma citizens that year, fails to meeting the deferential “rationality review” test under the Equal Protection Clause.

Although Judge Kern declared the part of the Oklahoma Marriage Amendment that bans same-sex marriages unconstitutional, he stayed his ruling pending an expected appeal by the state. Oklahoma is within the 10th federal appellate circuit, the same one that includes Utah, and thus this appeal will go to the same court that is now considering Utah’s appeal of a similar marriage quality ruling. The Utah case is on an expedited schedule, with initial briefing due in a few weeks and reply briefs due by the end of February. It seems unlikely that Oklahoma would fall in with such a fast-track schedule unless ordered to do so by the 10th Circuit, but handling both cases in one appellate proceeding would make eminent sense, so perhaps if Oklahoma officials decide to move quickly, this case could be consolidated with the pending appeal in Kitchen v. Herbert, making a subsequent trip to the U.S. Supreme Court that much more likely.

The strange name for this case, Bishop v. United States, relates to the unusual way it got started. After the Oklahoma Marriage Amendment was passed, two lesbian couples — Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips — filed a Complaint against both the federal and state governments, seeking a declaration that Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) and Parts A and B of the Oklahoma Marriage Amendment, were unconstitutional. Section 2 of DOMA purports to allow states to refuse to give “full faith and credit” to same-sex marriages contracted in other states, while Section 3 provided that the federal government would recognize only different-sex marriages. Part A of the Oklahoma amendment bans same-sex marriage in that state, and Part B refuses recognition to same-sex marriages contracted in other states.

The case took a few procedural twists and turns, including a trip up to the 10th Circuit Court of Appeals, leading to some changes in the identity of defendants. Ultimately, the summary judgment motion upon which Judge Kern ruled involves a suit between the two couples and Sally Howe Smith, the Tulsa County Clerk, who denied the Bishop couple a marriage license. The Barton couple, being dissatisfied with the pace of events in Oklahoma, have married in Canada and in California (in 2008). A major part of Judge Kern’s opinion considers the Barton couple’s challenge to DOMA, holding that they lack standing to challenge Section 2, because that provision did not compel Oklahoma to refuse to recognize their marriage, and that their challenge to Section 3 is moot because the U.S. Supreme Court declared it unconstitutional last year in U.S. v. Windsor. Thus, the Barton couple is effectively out of the case.

The Bishop couple, not being married, were only challenging Part A of the Oklahoma marriage amendment, under which Ms. Smith rejected their request for a marriage license. For reasons not explained in Judge Kern’s opinion, they did not challenge the Oklahoma statutes that also ban same-sex marriage, just the constitutional amendment, so that is all Judge Kern rules on, although he notes that much the same constitutional analysis would apply to the question whether the statutes are also unconstitutional.

Judge Kern’s opinion on the Oklahoma amendment goes through three stages.

First, he rejects the argument that the U.S. Supreme Court’s 1972 Baker v. Nelson decision is binding on the court. In that case, the Supreme Court dismissed a challenge to the Minnesota ban on same-sex marriage, which had been upheld by the Minnesota Supreme Court. The U.S. Supreme Court dismissed that appeal as not raising a “substantial federal question” and didn’t even bother to hear oral arguments or issue a written opinion explaining its conclusion. Such “summary affirmances” by the Supreme Court are technically binding on lower courts, unless subsequent developments in the law render them obsolete. In this case, Judge Kern, agreeing with Judge Robert Shelby of the U.S. District Court in Utah, held that subsequent developments had rendered Baker of little precedential value. Most significantly, of course, the Supreme Court’s rulings in Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor have changed the landscape for constitutional analysis of gay rights claims. “It seems clear that what was once deemed an ‘unsubstantial’ question in 1972 would now be deemed ‘substantial’ based on intervening developments in Supreme Court law,” wrote Judge Kern.

Second, the court had to decide what impact the Windsor decision would have. Judge Kern found that Windsor did not decisively tip the balance toward either party. “This Court interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples,” he wrote. He found that the Windsor court “did not apply the familiar equal protection framework,” but instead “based its conclusion on the law’s blatant improper purpose and animus.” He continued, “Both parties argue that Windsor supports their position, and both are right.” That is, Windsor supports the state’s argument that as a matter of history and practice, the regulation of marriage is a state function, not a federal function. But it supports the Bishop couple’s position because “much of the majority’s reasoning regarding the ‘purpose and effect’ of DOMA can be readily applied to the purpose and effect of similar or identical state-law marriage definitions.” As had Judge Shelby in Utah, Judge Kern noted Justice Scalia’s dissenting opinion in Windsor, explaining how the majority’s reasoning in that case would support a same-sex marriage claim.

Kern drew two lessons from the Windsor case. Because it is usual for states to define marriage, state marriage definitions “must be approached differently, and with more caution, than the Supreme Court approached DOMA.” But, when courts are reviewing marriage regulations, they “must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.”

Finally, in the third part of the analysis, Kern turned to the 14th Amendment claim in this case. He embraced a much narrower doctrinal analysis than did Judge Shelby in the Utah case, Kitchen v. Herbert. Kern decided that this was a case of sexual orientation discrimination, not sex discrimination, and thus was not subject to heightened scrutiny, and he did not accept the alternative argument that this was a fundamental right to marry case under the due process clause. This means there is no presumption against the constitutionality of the Oklahoma amendment, and it will be upheld if the court can think of any rational justification for it. After reviewing the history of the amendment’s adoption, Judge Kern concluded that it was adopted specifically to exclude same-sex couples from marriage because of moral disapproval of homosexuality by the legislators who proposed it (and presumably the voters who approved it), making it an instance of intentional discrimination with an impermissible motivation. The question was whether there was any other justification, once the court had ruled out “promoting morality,” which has not been a legitimate justification for anti-gay policies at least since the Supreme Court’s 1996 decision striking down Colorado Amendment 2, Romer v. Evans.

Not surprisingly, the court confronted the same arguments that have been raised in other states about promoting responsible procreation and providing an ideal setting for child rearing, but Judge Kern found no merit to these arguments in the context of excluding same-sex couples from marriage. He found that “there is no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites,” he pointed out. As to the argument that allowing same-sex marriages would somehow undermine the stability of different-sex marriages in Oklahoma, he evidently found the assertion laughable, pointing out that despite its same-sex marriage ban, Oklahoma has one of the highest divorce rates in the country. (Unlike, he might have added, Massachusetts, which has one of the lowest divorce rates and has been allowing same-sex marriages for almost a decade.)

While acknowledging that the state has an interest in incentivizing different-sex couples to get married before having kids, he said that this “asserted justification” for excluding same-sex couples from marriage “makes no sense because a same-sex couple’s inability to ‘naturally procreate’ is not a biological distinction of critical importance, in relation to the articulated goal of avoiding children being born out of wedlock. The reality is that same-sex couples, while not able to ‘naturally procreate,’ can and do have children by other means.” Citing 2010 census data showing that “there were 1,280 same-sex ‘households’ in Oklahoma who reported as having ‘their own children under 18 years of ago residing in their household,'” he pointed out that the articulated goal of reducing the number of children born outside of a marital relationship is hindered rather than promoted by a gay marriage ban.

As to the “ideal environment” for raising children argument, Judge Kern said that the state “has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will ‘promote’ this ‘ideal’ child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the ‘ideal’ child-rearing environment). It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to ‘understand the integrity and closeness of their own family and its concord with other families in their community,'” quoting U.S. v. Windsor.

Having rejected all the arguments in support of the ban, Judge Kern turned back to the Supreme Court precedents. Although that court has not yet ruled on the precise question, he found its rulings on related issues compelling. “Supreme Court law now prohibits states from passing laws that are born of animosity toward homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex and same-sex marriages differently,” he wrote. “There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.”

“Applying deferential rationality review,” he continued, “the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A [of the Oklahoma Marriage Amendment] as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.” He found that the exclusion was “without a legally sufficient justification.”

Thus, he declared Part A unconstitutional. He did not rule on the constitutionality of Part B, which denies recognition to same-sex out of state marriages, because the Bishop couple was not challenging it. Because the Oklahoma marriage statutes bans on same-sex marriages were not challenged, he did not rule on them in this opinion, although as noted above, he observed that the legal analysis of a challenge to those statutes would be essentially the same. However, observing that the Supreme Court recently stayed the Utah marriage ruling pending appeal, he adopted a similar stay, anticipating what would happen if he denied a stay and the state appealed for one.

Thus, same-sex marriage may not actually happen in Oklahoma for some time as this case makes its way through the appellate process, but Judge Kern has provided another nail in the coffin of state bans on same-sex marriages, in an opinion that is relatively modest compared to the more far-ranging opinions written by Judge Shelby and now-retired Judge Vaughn Walker in the California Proposition 8 case. This more modestly reasoned opinion may well be more sustainable on appeal for that very reason, as the Supreme Court tends to prefer moving in smaller rather than large doctrinal steps when addressing politically controversial issues.

Divided 5th Circuit Panel Finds No Constitutional Privacy Protection for Lesbian High School Student

Posted on: June 5th, 2013 by Art Leonard No Comments

A panel of the U.S. Court of Appeals for the 5th Circuit voted 2-1 that a lesbian high school student did not have a clearly established constitutional right of informational privacy in her sexual orientation.  Reversing a district court ruling, the panel held that two female high school softball coaches enjoy immunity from constitutional liability for “outing” the girl to her mother, in apparent retaliation for the girl having told another student that one of the coaches was dating a woman.  Both of the judges in the majority, E. Grady Jolly and Edith H. Jones, were appointed to the court by Ronald Reagan during the 1980s.  The dissenter, James E. Graves, Jr., was recently appointed to the court by Barack Obama.  Wyatt v. Fletcher, No. 11-41359 [2013 Westlaw 2371280], May 31, 2013.

The lawsuit was filed by Barbara Wyatt, the mother of the high school student, against the school district, the athletic director, and the two female coaches.  The athletic director was dismissed as a defendant by agreement of the parties, and the 5th Circuit panel’s decision concerns only the motion by the coaches to dismiss the constitutional claims against them on immunity grounds, which was denied by the district court and then appealed by the coaches.  

The doctrine of “qualified immunity” protects government employees from personal liability for actions they take within the scope of their employment unless the plaintiff can show that those actions violate a “clearly established” constitutional right.  In this case, plaintiff S.W. claims to have been interrogated by the coaches in a locked room in violation of her 4th Amendment right against unreasonable search or seizure, and that her informational privacy, protected by the 14th Amendment, was violated when the coaches told her mother that she was dating an older girl.  The district court found that due to contested facts it could not rule on the immunity issue, and denied the coaches’ motion, but also suggested that if certain factual disputes were resolved in favor of the plaintiff, she would have a valid constitutional claim.

The parties sharply contest some of the facts, but for purposes of ruling on a motion by the coaches to dismiss the claims against them on grounds of immunity, the plaintiff’s allegations are supposed to be taken as true, the issue for the court being whether the defendants enjoy immunity if the plaintiff’s factual assertions prove to be accurate.   Judge Graves criticized Judge Jolly’s majority opinion for failing to treat S.W.’s allegations as true and instead adopting a version of the facts more consistent with the coaches’ account of what happened.

More significantly, however, the majority and Graves part company on the question whether S.W. had a clearly protected constitutional right at stake.  Does an individual have a right not to be “outed” as gay by a government employee who comes into possession of that information as part of their job?  The majority insisted that for the constitutional right claimed by S.W. to be “clearly established,” there must be, in effect, a Supreme Court or 5th Circuit ruling holding that teachers questioning a student in a locked room violates the 4th Amendment or that a teacher telling a parent that her child is gay violates the 14th Amendment.  The majority also suggested that the 4th Amendment issue had faded from the case and that the main focus was on the coaches’ disclosure of information to Ms. Wyatt.  Sharply contesting this approach, Judge Graves argued that there is plenty of precedential authority for S.W.’s constitutional claims, including specific statements by appellate courts (including the 5th Circuit) that information about a person’s sexual orientation is the kind of “personal fact” that is entitled to constitutional protection against unauthorized disclosure by the government. 

Graves particularly criticized the majority’s contention that prior cases do not establish a privacy right since they did not involve minors or high school students, or disclosures to the student’s parents, and that students generally enjoy limited privacy rights in high school locker rooms.  On the contrary, wrote Graves, “school children do not shed their constitutional rights at the schoolhouse gate.  The majority fails to cite any authority to indicate that the Fourth Amendment right to be free from unreasonable seizure does not extend to high school students.”  As to the information privacy issue, he wrote, “Based on the applicable authority and the coaches’ own admissions that they recognized the private nature of the information, the district court is absolutely correct that sexual orientation would fall within the categories of highly personal information protected by the right to privacy.  The district court correctly held that, while the 5th Circuit has never explicitly held that a student has a right to privacy in keeping his or her sexual orientation confidential, an analysis of precedent compels the finding of such a right.”

The majority, by contrast, largely embracing the coaches’ account of what happened, suggested that Ms. Wyatt already knew that her daughter was gay when she was called into a meeting by the coaches, who intended to inform her about her daughter’s dangerous misbehavior for her own protection from the “older woman” – an 18-year-old who had been invited to attend a softball game by her former girlfriend, who was then allegedly dating one of the female coaches!  (This case sounds like a soap opera, doesn’t it?)  The court also suggested that school officials have a right, unimpeded by constitutional considerations, to inform parents about the sexual activities of their children, and that summoning a student into a locked room to interrogate her about her behavior raises no significant 4th Amendment issues. 

The court’s ruling does not totally end the case, because S.W. had also asserted state law claims against the coaches as well as various claims against the school district that were not subject to this pretrial motion.  But the 5th Circuit’s ruling ends S.W.’s constitutional claim against the two coaches.