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Federal Court Says West Virginia Can Bar Transgender Girls from Girls’ Sports Teams

Posted on: January 9th, 2023 by Art Leonard No Comments

A federal judge ruled on January 5 that a West Virginia law forbidding transgender girls from competing on girls’ scholastic sports teams does not violate the constitution or the federal law banning sex discrimination by educational institutions.   B.P.J. v. West Virginia State Board of Education, 2023 WL 111875, 2023 U.S. Dist. LEXIS 1820 (S.D.W.Va., Jan. 5, 2023).

West Virginia enacted the “Save Women’s Sports Bill” in 2021.  The bill says that “inherent differences” between “biological males and females” justify having separate athletic teams for “biological males” and “biological females,” and that regardless of gender identity, for purposes of sports competition transgender females are biological males.

Becky, the plaintiff in B.P.J. v. West Virginia Board of Education, is now eleven years old, She was identified as male at birth, but “began expressing her female gender identity when she was three years old,” according to the complaint filed on her behalf by Lambda Legal and the American Civil Liberties Union.  “By the end of third grade, B.P.J. expressed herself fully – both at home and otherwise – as a girl,” wrote U.S. District Judge Joseph R. Goodwin.  She was diagnosed with gender dysphoria in 2019 and began taking puberty blocking medications at the first signs of puberty, so she has “not undergone endogenous male puberty,” wrote the judge.

When she was preparing to enter middle school, she wanted to try out for the girls’ cross-country and track teams.  Her mother asked the school to let her participate, but they told her that it would depend on what happened with the “Save Women’s Sports Bill,” which was then being considered by the state legislature.  When the bill passed, B.P.J. was informed that she would not be permitted to try out for the girls’ team.  She filed her lawsuit on May 26, 2021, claiming a violation of Equal Protection under the 14th Amendment and of Title IX of the Education Amendments of 1972 which bans sex discrimination.

She immediately sought a preliminary injunction so she could try out for the team while the case was pending.  The decision whether to grant a preliminary injunction requires the court to determine whether Becky had a likelihood of success on the merits of her “as-applied” challenge to the law.  Judge Goodwin granted the preliminary injunction, but shortly thereafter granted a motion by a cisgender female college athlete, represented by Alliance Defending Freedom (ADF), to intervene to defend the law from the perspective of a “biological woman” who might have to compete with transgender “biological men.”

Despite issuing the preliminary injunction, which allowed B.P.J. to try out for the girls’ team for the 2021-22 season, Judge Goodwin changed his mind about the merits, ruling for the state and the intervenor on January 5.

Before explaining his ruling, Judge Goodwin noted that B.P.J. was not arguing that the West Virginia law was unconstitutional under the “animus” doctrine, which holds that a legislature cannot pass a law that discriminates against a disfavored group out of animus against that group.  She also was not challenging a policy of having separate teams for boys and girls.  Instead, she was arguing that she was “similarly situated” to cisgender girls for all relevant purposes and thus should be entitled to be treated the same as them play women’s sports.

Judge Goodwin found that the law should be tested under the “intermediate scrutiny” standard that some courts have adopted to evaluate transgender discrimination claims.  Under this standard, the state can successfully defend a discriminatory law by showing that it significantly advances an important state interest.  He treated the issue before the court as whether the state could define sex as “biological sex” and treat B.P.J.. as male for purposes of sports competition.

“Whether a person has male or female sex chromosomes determines many of the physical characteristics relevant to athletic performance,” wrote Goodwin.  “While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes.  This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.  Given B.P.J.’s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females.”

Although he conceded that by taking puberty blockers, B.P.J. may have avoided the physical advantage that “biological males,” on average, enjoy, he wrote that “other transgender girls may not take those medications” for a variety of reasons, including realizing their female gender identity after going through some or all of puberty or having difficulty in accessing the treatment.  “And,” he wrote, “as evidenced by the thousands of pages filed by the parties in this case, there is much debate over whether and to what extent hormone therapies after puberty can reduce a transgender girl’s athletic advantage over cisgender girls.”  Indeed, he found that “the social, medical, and physical transition of each transgender person is unique” but “the fact is… that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males.”

The oddity here, is that Goodwin’s analysis treats this “as-applied” challenge as if it is a “facial challenge.”  The question B.P.J. sought to pose is whether it violated her rights to apply a categorical exclusion of all “biological males” to her, rather than to have a policy of treating each transitioning person as unique to be evaluated based on their individual history.  Because she identified as female very early, took puberty blocking medications, and has not gone through male puberty, she argues that in terms of physical capabilities, she is more like a cisgender girls of her age than a biological boy of her age.

But the judge was convinced by ADF’s argument on behalf of the cisgender intervenor, who asserted that “some boys run slower than the average girl and some boys have circulating testosterone levels similar to the average girl because of medical conditions or medical interventions,” but B.P.J. has not argued that those boys should be allowed to play on girls’ teams.  “This is inconsistent with her argument that the availability of hormone therapies makes transgender girls similarly situated to cisgender girls,” wrote Goodwin.

“In fact,” he wrote, “after reviewing all of the evidence in the record, including B.P.J.’s telling responses to requests for admission, it appears that B.P.J. really argued that transgender girls are similarly situated to cisgender girls for purposes of athletics at the moment they verbalize their transgender status, regardless of their hormone levels.”  The lack of an actual quotation of a statement by B.P.J. to this effect in the court’s opinion causes one to doubt that she was making such an argument, however.

But Goodwin concluded that “the legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females.” As such, he decided that it survives the heightened scrutiny test.

Turning to Title IX, Goodwin reached the same result.  “There is no serious debate that Title IX’s endorsement of sex separation in sports refers to biological sex,” he wrote.  Since he had already found in his Equal Protection analysis that “transgender girls are biologically male” and thus, on average, advantaged over cisgender girls in athletic competition, he found that the West Virginia policy was fully consistent with Congress’s intent in Title IX to afford equal opportunity for female students to compete in scholastic athletics.

“I have no doubt that H.B. 3393 aimed to politicize participation in school athletics for transgender students,” wrote the judge.  “Nevertheless, there is not a sufficient record of legislative animus.” In other words, he concluded that the law was not shown by evidence to be the product of bias against transgender girls, but rather was motivated by the legislature’s desire to protect cisgender girls from what the legislature considered to be unfair competition from boys.

An appeal of Judge Goodwin’s ruling would go to the U.S. Court of Appeals for the 4th Circuit, which has yet to weigh in on this issue.

Judge Goodwin was appointed by President Bill Clinton in 1995.

Washington Law Against Conversion Therapy Survives Constitutional Attack

Posted on: September 7th, 2022 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Masterpiece Baker Phillips Wins a Round in New Lawsuit Against Colorado Civil Rights Officials

Posted on: January 9th, 2019 by Art Leonard No Comments

Masterpiece Cakeshop baker Jack Phillips is back in court again, this time suing officials of Colorado’s Civil Rights agency and the state’s attorney general and governor to try to block the Commission from continuing a case against him for refusing to make a custom-designed cake to celebrate a transgender attorney’s celebration of the anniversary of her transition. On February 4, Senior U.S. District Judge Wiley Y. Daniel largely rejected a motion by defendants to dismiss the case, although he narrowed its scope somewhat.

For those coming in late to this ongoing drama: Phillips and Masterpiece Cakeshop were found by the Commission and the Colorado Court of Appeals to have violated the state’s public accommodations law when he refused to make a wedding cake for a gay couple in 2012 because of his religious objection to same-sex marriage. The U.S. Supreme Court reversed those decisions in a 7-2 ruling last June 4, based on the Court’s conclusion that the state had not afforded Phillips a “neutral” forum to consider his 1st Amendment defense.

Part of the Court’s conclusion that the Commission was “hostile” to Phillips on religious grounds rested on the Commission’s treatment of a provocateur named William Jack. While the discrimination claim by a gay couple was pending before the Commission, Jack approached three Colorado bakeries that custom-decorate cakes, asking them to make cakes for him that “conveyed disapproval of same-sex marriage, along with religious text,” quoting here from Justice Anthony M. Kennedy’s opinion for the Supreme Court. All the bakers turned him down, stating that they “objected to those cakes’ messages and would not create them for anyone.” Jack filed discrimination charges against the bakeries, but after investigating his charges, the Colorado Civil Rights Division found no “probable cause” that the statute was violated, and the Commission affirmed that determination.

The Supreme Court seized upon the Commission’s response to Jack’s provocation, saying that the Commission’s hostility was evident in “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” The Civil Rights Division ruled in Phillips’ case that “any message the requested wedding cake would carry would be attributed to the customer, not the baker,” while “the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.” Justice Kennedy also critically noted that “the Division found no violation of the Act in the other cases in part because each bakery was willing to sell other products to the prospective customers” but the “Commission dismissed Phillips’ willingness to sell birthday cakes, shower cakes, cookies and brownies, to gay and lesbian customers as irrelevant.”

The Supreme Court had announced its decision to grant Jack Phillips’ petition for review on June 26, 2017 – an announcement that received widespread media coverage and apparently prompted Autumn Scardia, a transgender attorney, to take a leaf from William Jack’s book. She phoned Masterpiece and inquired about getting a cake with a blue exterior and a pink interior to “celebrate her transition from male to female.” Scardina said she wanted the cake for a birthday party she was planning. It was only when she described the color scheme and the reason for it that Phillips turned down the order, stating that he would not make a cake celebrating a gender transition for “any customer, no matter the customer’s protected characteristics.” In his current lawsuit, he alleges that he “offered to create a different custom cake for Scardina or to sell her any of the pre-make items available for purchase.” But she declined to order anything else.

Scardina filed a discrimination charge with the Division. Several weeks after the Supreme Court ruled on the first Masterpiece Cakeshop case, the Division issued a probable cause determination against Phillips for violating the public accommodations law by refusing Scardina’s cake order. While noting the religious reasons cited by Phillips for specifically not making a cake designed to celebrate a gender transition, due to his religious belief that a person’s sex is “an immutable God-given reality,” the Commission nonetheless concluded that “the refusal to provide service to Complainant was based on her transgender status.”

On October 2, 2018, the Commission filed a formal complaint against Phillips based on the Division’s finding, and set the case for a hearing. Anticipating this move, Phillips filed a complaint in federal court on August 14, 2018, which the defendants promptly moved to dismiss. Phillips charges that the state is out to get him, characterizing its actions as “unconstitutional bullying.” After the defendants’ dismissal motion and the Commission’s formal complaint were filed, Phillips filed an amended complaint to take account of these developments. The Commission’s hearing. The hearing has not yet taken place.

Phillips claims that the defendants’ interpretation of the public accommodations law violates his First Amendment rights to free exercise of religion and freedom of speech. He also makes a Due Process vagueness claim against the statute, attacking it on several grounds, including a structural charge against the statutory criteria for the appointment of Commission members by the governor, which require, among other things, that several members of the Commission be representative of minority communities protected by the anti-discrimination law. He also asserted an equal protection claim, focused again on the differential treatment cited by the Supreme Court in noting the Commission’s refusal to prosecute the bakers who had turned down William Jack’s order for “anti-same-sex marriage cakes.”

Phillips sought injunctions against the state officials forbidding them from interpreting and enforcing the statute against him. He also sought a judicial declaration about the violation of his constitutional rights, and compensatory, punitive and nominal damages against the Civil Rights Division’s Director, Aubrey Elenis, and the seven members of the Commission.

In ruling on the motion to dismiss, Judge Daniel found that none of the “abstention doctrines” that the federal courts have developed to determine whether to allow federal lawsuits to interfere with state administrative proceedings should apply in this case, and that Phillips had standing to bring this lawsuit, not only because of the proceedings ongoing against him, but also because he wanted to post a policy statement on his business’s website about the basis on which they would refuse to make custom-cakes, but was inhibited from doing so because a section of the public accommodations law states that businesses cannot publish discriminatory policies.

However, Daniel did find that Director Elenis and the individual Civil Rights Commissioners enjoy absolute immunity from personal liability for damages, accepting their argument that they are acting as prosecutors and adjudicators. He wrote that it is “well-established that prosecutors are absolutely immune for activities which are intimately associated with the judicial process such as initiating and pursuing” a prosecution. He found that the U.S. Court of Appeals for the 10th Circuit, whose rulings are binding on the district court in Colorado, has “extended absolute immunity to state administrative or executive officials serving in adjudicative, judicial, or prosecutorial capacities.”

Furthermore, the judge found that Governor John Hickenlooper should be dismissed as a defendant, since he played no direct role in enforcing the public accommodations law, so suit against him in his official capacity was barred by the 11th Amendment. Just in time, it seems, since Hickenlooper’s term ended a few days after the court issued it January 4 decision, with Governor Jared Polis taking office on January 8. This decision means that Polis, the state’s (and nation’s) first out gay man to be elected a governor, did not become a defendant in this lawsuit immediately on taking office!

However, the court refused to dismiss the Attorney General, Cynthia Coffman, from the case, finding that the attorney general’s role of representing the Commission in court did make that office potentially subject to injunctive relief. Once again, however, the timing was fortuitous, since Coffman’s term has also ended, as Phil Weiser took office as attorney general on January 8, and the defense of this case will be carried on by his office.

Of course, Phillips is represented by Alliance Defending Freedom, the right-wing Christian litigation group that represented him in appealing the wedding cake decision to the Supreme Court. Not coincidentally, ADF also represents Harris Funeral Homes, seeking Supreme Court review of the 6th Circuit’s decision that Harris violated Title VII of the Civil Rights Act when it fired a transgender funeral director, as well as anonymous plaintiffs who are asking the Supreme Court to overturn the 3rd Circuit’s decision rejecting a constitutional challenge to the Boyertown, Pennsylvania, school district’s transgender-affirmative facilities access policy. One of the best ways to keep up with some major cases in LGBT-related litigation is to periodically visit ADF’s website.