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Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

Posted on: February 20th, 2021 by Art Leonard No Comments

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity.  The School Board is appealing from an August 2020 decision by the 4th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems.  The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims.  But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX.  However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students.  Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”  This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review.  Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt.  While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up.  The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU.  Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

Federal Court Enjoins HHS & EEOC From Requiring Catholic Plaintiffs to Perform or Provide Gender Transition Services

Posted on: January 23rd, 2021 by Art Leonard No Comments

Ruling on the last full day of the Trump Administration, one of the federal trial judges appointed by the outgoing president ruled that the Religious Freedom Restoration Act (RFRA) bars the federal government from enforcing the non-discrimination requirement of the Affordable Care Act (ACA) Section 1557 or Title VII of the Civil Rights Act of 1964 against Catholic plaintiffs to require them either to fund or perform gender transition procedures.  Religious Sisters of Mercy v. Azar, 2021 WL 191009, 2021 U.S. Dist. LEXIS 9156 (D.N.D., January 19, 2021).  Chief Judge Peter D. Welte denied summary judgment to co-plaintiff the State of North Dakota, which sought a declaration that it is not required to provide such procedures in its state health institutions or to its employees or through its Medicaid program, and found that the Plaintiffs lacked standing on their claims concerning performance of abortions and sterilizations, as the court found that various provisions of the ACA and other federal laws already relieved them of obligations in that regard.

Judge Welte issued his opinion just a few days after hearing oral argument on the summary judgment motions, but the case has been pending for a long time and it is likely that he had most of the lengthy, analytical opinion drafted well in advance of the argument, on the basis of the suit papers.

The case was complicated by the history of the federal government’s positions on the issue in question, which changed to the extent of the Trump Administration withdrawing an Obama Administration regulation from  2016 and replacing it with a new regulation, formally announced just days before the Supreme Court’s Bostock v. Clayton County decision.  In Bostock, 140 S. Ct. 1731 (June 15, 2020), the Court determined that Title VII’s ban on discrimination because of sex necessarily extended to claims of discrimination because of sexual orientation and transgender status.

The final regulation announced days before Bostock acknowledged that the case had been argued and indicated that its outcome could affect the scope of the ACA’s non-discrimination requirement.  In its explanatory Prologue to the regulation, HHS reiterated the Trump Administration’s view – presented to the Court in Bostock by the Solicitor General – that discrimination because of sex does not encompass discrimination because of gender identity.  Confident that they were going to win, their new regulation, intended to supplant the Obama Administration’s regulation, removed the earlier regulation’s definition of “sex” so that it no longer specified “gender identity.”  They went ahead and officially published the new regulation as previously schedule in the Federal Register a few days after Bostock was decided, making no effort to delay publication in order to take account of that decision.  The result was peculiar: a regulation formally published just days after a Supreme Court decision that admittedly could affect the substance of the regulation, but utterly failing to grapple with that effect.

The Trump Administration’s brazen decision to go ahead with final publication without taking Bostock into account persuaded several other federal district courts to conclude that the final regulation’s definition of sex violated the Administrative Procedure Act as being inconsistent with the ACA statute’s non-discrimination requirement and/or because it was adopted arbitrarily by failing to consider the Bostock decision.  Other district courts have also criticized HHS’s assertion in the regulation that Title IX’s religious entity exemption was relevant to the ACA, inasmuch as the ACA’s non-discrimination provision specifies that entities covered by it were subject to the kinds of discrimination prohibited by Title IX, which exempts religious schools from its sex discrimination requirements.  The Trump Administration had also persisted in rejecting arguments that Bostock’s interpretation of Title VII necessarily applied to Title IX and other federal sex discrimination laws.

The day after Judge Welte issued his decision, President Biden included among his first Executive Orders one instructing the Executive Branch to apply Bostock to all federal sex discrimination laws.  While EO’s are not interpretively binding on the courts, they are binding on how Executive Branch agencies interpret and enforce their statutory mandates, so the new leadership in HHS and, eventually, the EEOC (where the president gets to appoint one new member of the Commission each year, relatively quickly tipping the balance to the new Administration’s viewpoint regarding the definition of sex discrimination.

But that is neither here nor there regarding the central question in this case, at least as framed by Judge Welte in response to the Catholic plaintiffs, which is whether the government is precluded from enforcing any such non-discrimination requirement against the plaintiffs according to their religiously-based objections, in light of the Religious Freedom Restoration Act.

In Bostock, Justice Neil Gorsuch referred to RFRA as a “super statute” that may override non-discrimination requirements of Title VII (and by extension Title VII and the ACA) in an “appropriate case.”  Is this such an appropriate case?  That turns on whether application of the non-discrimination requirement imposes a substantial burden on the free exercise of religion by the Catholic plaintiffs, in which case Judge Welte characterizes the level of judicial review to be applied to the government’s policy as “strict scrutiny” such that the policy can only be applied if it is the least intrusive way to achieve a compelling government interest.

The court found that “compliance with the challenged laws would violate the Catholic Plaintiffs’ religious beliefs as they sincerely understand them. . .  In meticulous detail, the Catholic Plaintiffs have explained that their religious beliefs regarding human sexuality and procreation prevent them from facilitating gender transitions through either medical services or insurance coverage.”

As to the compelling interest test, the court found that the Defendants “never attempt to make that showing here.”  Of course, Defendants are the Trump Administration’s HHS (for the ACA) and EEOC (for Title VII).  The rule HHS published in June 2020 “conceded to lacking a ‘compelling interest in forcing the provision, or coverage, of these medically controversial [gender-transition] services by covered entities.’”  By contrast, of course, when the Obama Administration opined on this in 2016, HHS specified a compelling interest in ensuring nondiscriminatory access to healthcare, and the EEOC asserted a compelling interest in ensuring non-discriminatory employee benefits plans.  But Judge Welte noted Supreme Court authority that those interests are stated at too high a level of generality to meet the RFRA test, directing courts to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants and to look to the marginal interest in enforcing the challenged government action in that particular context.”  Responding to this command, wrote Welte, “Neither HHS nor the EEOC has articulated how granting specific exemptions for the Catholic Plaintiffs will harm the asserted interests in preventing discrimination. . .  In short, the Court harbors serious doubts that a compelling interest exists.  This issue need not be resolved, however,” he continued, “because the Defendants fail to meet the rigors of the least-restrictive-means test.”

The “least-restrictive means” test is the third part of the RFRA analysis.  Even if the government’s interest is compelling, the question is whether there is a way to achieve that interest without burdening the free exercise rights of the plaintiffs.  Is requiring Catholic entities to perform or finance gender transition the “only feasible means to achieve its compelling interest,” asks the court.  Here, resorting to the Supreme Court’s Hobby Lobby case, Welte suggests that “the most straightforward way of doing this would be for the Government to assume the cost of providing gender transition procedures for those unable to obtain them under their health-insurance policies due to their employers’ religious objections.” And, he opined, “if broadening access to gender-transition procedures themselves is the goal, then ‘the government could assist transgender individuals in finding and paying for transition procedures available from the growing number of healthcare providers who offer and specialize in those services,’”  quoting Franciscan Alliance, a decision from the Northern District of Texas that had preliminarily enjoined the government from bringing enforcement actions under Section 1557 against religious objectors.  (That injunction was dissolved when the Trump Administration indicated to that court that it did not intend to enforce Section 1557 against religious objectors and would replace the 2016 Obama Administration regulation with one that did not require such coverage.) And, said the court, the Defendants had not shown that “these alternatives are infeasible.”

Thus, the court granted summary judgment and issued a permanent injunction against enforcement of Sec. 1557 or Title VII against the Catholic Plaintiffs in this case.  The court did not issue a nationwide injunction, however, limiting its injunction to the plaintiff organizations in this case, and as noted finding that the state of North Dakota did not have standing on these questions, rejecting its Spending Clause argument that the government was wrongly coercing the state to fund gender transition through the Medicare and Medicaid programs.

It is worth noting that this litigation was not brought on by an actual case of a transgender individual seeking gender transition services from a Catholic health care organization, or the employee of a Catholic entity challenging the failure of the employer’s health insurance to cover the procedures, or in response to a challenge to the state’s failure to cover these procedures for its employees or Medicaid participants.  This was affirmative litigation brought by the state and the Catholic plaintiffs preemptively, seeking to establish judicial cover for their discriminatory policies.  As such, and significantly, the interests of transgender people were not directly represented in this case although the ACLU participated as amicus curiae.   (Curiously, the Westlaw report of the case did not list the ACLU among counsel, but the Lexis report did as of January 23 when this account was written.)  The Plaintiffs were represented by the North Dakota Attorney General’s Office, The Becket Fund for Religious Liberty, and private counsel for several of the Catholic institutional plaintiffs.  The government (i.e., the Trump Administration) was represented by the Justice Department and the U.S. Attorney’s Office for North Dakota, which of course was happy to let the Plaintiffs win in light of the Administration’s position opposing the Bostock ruling and their issuance of the 2020 Regulation (which the court could plausibly have found mooted the case, were it not for the fact that he was ruling the day before President Biden was to be inaugurated).  Now it is up to the Biden Administration to take over and appeal this decision to the 8th Circuit, in light of the President’s January 20 Executive Order.

Gavin Grimm Victorious: U.S. Appeals Court Reject’s School Board’s Anti-Trans Restroom Policy

Posted on: August 29th, 2020 by Art Leonard No Comments

Capping litigation that began in 2015, a three-judge panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit ruled by a vote of 2-1 on August 26 that the Gloucester County (Virginia) School Board violated the statutory and constitutional rights of Gavin Grimm, a transgender boy, when it denied him the use of boys’ restrooms at Gloucester County High School.  Grimm v. Gloucester County School Board, 2020 U.S. App. LEXIS 27234, 2020 Westlaw 5034430.

This may sound like old news, especially since other federal appellate courts, most notably the Philadelphia-based 3rd Circuit, the Chicago-based 7th Circuit, the San Francisco-based 9th Circuit and the Atlanta-based 11th Circuit, have either ruled in favor of the rights of transgender students or rejected arguments against such equal access policies by protesting parents and cisgender students. But Grimm’s victory is particularly delicious because the Trump Administration intervened at a key point in the litigation to switch sides in the case after the Obama Administration had supported Grimm’s original lawsuit.

Grimm, identified as female at birth, claimed his male gender identity by the end of his freshman year, taking on a male name and dressing and grooming as male. Before his sophomore year, he and his mother spoke to the high school principal and secured agreement that he could use boys’ bathrooms, which he did for several weeks without incident.  But as word spread that a transgender boy was using the facilities, parents became alarmed and deluged the school board with protests, leading to two stormy public meetings and a vote that transgender students in the district (of which Grimm was then the only known one) were restricted to using a single-occupant restroom in the nurse’s office or restrooms consistent with their “biological sex,” which the district defined as the sex identified at birth.

After Grimm filed his lawsuit represented by the American Civil Liberties Union (ACLU) seeking a court order to allow him to resume using the boys’ restrooms in his school, the Obama Administration weighed in with a letter to the court siding with Grimm’s argument that the school board’s policy violated Title IX of the Education Amendments of 1972, which bans sex discrimination against students.  Despite this positive letter, the district judge granted the school board’s motion to dismiss the Title IX claim, reserving judgment on Grimm’s alternative claim under the Equal Protection Clause of the 14th Amendment.

Grimm appealed the dismissal.  A three-judge panel of the 4th Circuit then ruled that the district court should have deferred to the Obama Administration’s interpretation of Title IX and not dismissed that claim.  The school board sought review from the U.S. Supreme Court, which granted the petition and scheduled the case for argument in March 2017.  The timing of this argument guaranteed that Grimm would never get to use the boys’ restrooms at the high school before graduating that spring.

After the Trump Administration took office in January 2017, the Justice and Education Departments announced that they were “withdrawing” the Obama Administration’s interpretation of Title IX.  Without taking a formal position on the interpretive question, they criticized the Obama Administration as inadequately reasoned.  But subsequently, Attorney General Jeff Sessions announced his disagreement with the Obama Administration’s interpretation of Title IX and more generally the prior administration’s position that transgender people are protected by all federal laws banning sex discrimination.  In an October 2017 memorandum to all executive agencies, Sessions announced that laws banning sex discrimination apply only narrowly to a claim that an individual suffered discrimination because he was a biological male or she was a biological female, defined by how they were identified at birth.

Since the 4th Circuit had premised its reversal of the dismissal of Grimm’s Title IX claim on its conclusion that the district court should have deferred to the Obama Administration’s interpretation, the basis for that ruling was effectively gone.  The Solicitor General formally notified the Supreme Court, which cancelled the scheduled hearing, vacated the 4th Circuit’s decision, and sent the case back to the District Court without any ruling by the Supreme Court.  In the interim, the district court had responded to the 4th Circuit’s decision by issuing an injunction requiring the school board to let Grimm use the boys’ restrooms, but that was stayed while the appeal was pending in the Supreme Court and within months of the Supreme Court’s action of March 2017, Grimm had graduated from high school.

The Gloucester County School Board than urged the district court to dismiss the case as moot, since Grimm was no longer a student.  Grimm insisted that the case should continue, because he should be entitled to seek damages for the discrimination he suffered and he wanted to be able to use the male facilities if he returned to the school as an alumnus to attend events there.  The mootness battle raged for some time, the complaint was amended to reflect the new reality that Grimm was no longer a student, and a new issue emerged when Grimm requested that the school issue him an appropriate transcript in his male name identifying him as male, since he was stuck in the odd situation of being a boy with a high school transcript identifying him as a girl.  By this time, he had gotten a court order approving his name change and a new birth certificate, but the school persisted in denying him a new transcript, raising frivolous arguments about the validity of the new birth certificate.

Thus repurposed, the case went forward.  Ultimately the district court ruled in Grimm’s favor on both his statutory and constitutional claims, but the school board was not willing to settle the case, appealing again to the 4th Circuit.  The August 26, 2020, ruling is the result.

The ACLU publicized this case heavily from the beginning, winning national media attention and an army of amicus parties filing briefs in support of Grimm’s claim along the away.  On May 26, 2020, the case was argued in the 4th Circuit before a panel of two Obama appointees, Judge Henry Floyd and Judge James A. Wynn, Jr., and an elderly George H.W. Bush appointee, Judge Paul Niemeyer (who had dissented from the original 4th Circuit ruling in this case).  In light of the rulings by other courts of appeals on transgender student cases and the Supreme Court’s decision in Bostock v. Clayton County, Georgia, on June 25, 2020, holding that discrimination because of transgender status is discrimination “because of sex” under Title VII of the Civil Rights Act, the result in this new ruling was foreordained.

Judge Floyd’s opinion for the panel, and Judge Wynn’s concurring opinion, both go deeply into the factual and legal issues in the case, constituting a sweeping endorsement of the right of transgender students to equal treatment in schools that receive federal funding, a prerequisite for coverage under Title IX.  Furthermore, public schools are bound by the Equal Protection Clause, and the court’s ruling on the constitutional claim was just as sweeping.

The court first rejected the school board’s argument that the case was moot, with Grimm having graduated and now being enrolled in college.  Since damages are available for a violation of Title IX, it was irrelevant that Grimm was no longer a student.  He had been barred from using the boys’ restrooms for most of his sophomore and all of his junior and senior years.  Even though the district court granted him only nominal damages, his claim for damages made this a live controversy, as did the school’s continuing refusal to issue him a proper transcript, which the court held was also illegal.

Turning to the merits, Judge Floyd first tackled the Equal Protection claim.  The court rejected the School Board’s argument that there was no discrimination against Grimm because he was not “similarly situated” to cisgender boys.  Judges Floyd and Wynn firmly asserted that Grimm is a boy entitled to be treated as a boy, regardless of his sex as identified at birth.  This judicial endorsement of the reality of gender identity is strongly set forth in both opinions.

Judge Niemeyer’s dissent rests on a Title IX regulation, which Grimm did not challenge, providing that schools could maintain separate single-sex facilities for male and female students, and the judge’s rejection that Grimm is male for purposes of this regulation.  Niemeyer insisted that Title IX only prohibits discrimination because of “biological sex” (a term with the statute does not use).  As far as he was concerned, the school did all that the statute required it to do when it authorized Grimm to use the nurse’s restroom or the girls’ restrooms.  But the majority of the panel accepted Grimm’s argument that the school’s policy subjected him to discriminatory stigma, as well as imposing physical disadvantages.  As a boy, he would not be welcome in the girls’ restroom, and the nurse’s restroom was too far from the classrooms for a break between classes.  As a result, he generally avoided using the restroom at school, leaving to awkward situations and urinary tract infections.

As the case unfolded, the school constructed additional single-user restrooms open to all students regardless of sex and made some modifications to the existing restrooms to increase the privacy of users, but the single-user restrooms were not conveniently located and cisgender students did not use them, reinforcing the stigma Grimm experienced.  Stigma due to discrimination has long been recognized by the federal courts as the basis for a constitutional equal protection claim.

The school’s actions undermined Judge Niemeyer’s argument that the school board policy was justified by the need to protect the privacy of cisgender students, an argument that has been specifically rejected by the 3rd and 9th Circuit cases when they rejected cases brought by parents and cisgender students challenging school policies that allowed transgender students to use appropriate restrooms.  Judge Niemeyer colorfully wrote, “we want to be alone — to have our privacy — when we ‘shit, shower, shave, shampoo, and shine.’”  (Do high school buys shave in the boys’ room as a general practice?)  But the panel smajority was not persuaded that it was necessary to exclude Grimm from the boys’ restrooms to achieve this goal.  After all, the only way Grimm as a transgender boy could relieve himself was by using an enclosed stall, lacking the physical equipment to use a urinal, so he would not be disrobing in front of the other students.  (Let’s be real here.)

Judge Floyd’s opinion did not rely on the Bostock ruling for its constitutional analysis, instead noting that many circuit courts of appeals have accepted the argument that government policies discriminating because of gender identity are subject to heightened scrutiny, and are thus presumptively unconstitutional unless they substantially advance an important state interest.  The majority, contrary to judge Floyd, did not think that excluding Grimm advanced an important state interest, especially after the School Board had altered the restrooms to afford more privacy, an obvious solution to any privacy issue.

Turning to the statutory claim, Judge Floyd pointed out that judicial interpretation of Title IX has always been informed by the Supreme Court’s Title VII rulings on sex discrimination, so the Bostock decision carried heavy precedential weight and the school board’s arguments on the constitutional claim were no more successful on this claim.  The School Board lacked a sufficient justification under Title IX to impose unequal access to school facilities on Grimm.

At this point, the Gloucester County School Board can read the writing on the wall and concede defeat, or it can petition the 4th Circuit for en banc review (review by the full 15-judge bench of the circuit court), or it can seek Supreme Court review a second time.  As to the en banc situation, the 4th Circuit is one of the few remaining federal circuit courts with a majority of Democratic appointees, as several of Bill Clinton’s appointees are still serving as active judges and all six of Obama’s appointees are still serving, leaving a majority of Democratic appointees on the full bench, so seeking en banc review, which requires that a majority of the active judges vote to review the case, would be a long shot.

On the other hand, Justice Neil Gorsuch’s decision for the Supreme Court in Bostock refrained from deciding – since it wasn’t an issue in that case – whether excluding transgender people from restroom facilities violates sex discrimination laws, and this case would provide a vehicle for addressing that issue.  It takes only four votes on the Supreme Court to grant review of a lower court case, so there may be another chapter in the saga of Grimm’s legal battle. It is also possible that the St. Johns County School District in Florida, which lost in the 11th Circuit in a virtually identical ruling, might also seek Supreme Court review, so one way or another, this issue may yet get on to the Court’s Docket this term or next.

ACLU attorney Joshua Block has been representing Grimm throughout the struggle, but the case was argued in May by cooperating attorney David Patrick Corrigan, a litigation specialist at the Richmond firm of Harman Clayton Corrigan & Wellman.  A local Richmond firm represented the School Board, confronting Virginia Attorney General Mark Herring supporting Grimm with an amicus brief.  The overwhelming majority of amicus briefs filed, many by state attorneys general, sided with Grimm.

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 14th 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 4th 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 4th 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 4th 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 4th 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 4th 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 7th 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.

 

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Federal Court Orders Wisconsin to Cover Transition Medical Costs for Transgender State Employees

Posted on: September 25th, 2018 by Art Leonard No Comments

U.S. District Judge William M. Conley ruled on September 18 in Boyden v. Conlin, 2018 WL 4473347, 2018 U.S. Dist. LEXIS 158491 (W.D. Wis.), that Wisconsin’s refusal to cover “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” for its transgender state employees violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 and in the Affordable Care Act, as well as the Equal Protection Clause of the 14th Amendment.  Conley had previously awarded a preliminary injunction to transgender Medicaid participants in Wisconsin who were seeking similar coverage under that program, having concluded that they were likely to prevail on the merits of their claims. See Flack v. Wisconsin Department of Health Services, 2018 WL 3574875 (W.D. Wis., July 25, 2018). In this new decision, Judge Conley was ruling on motions for summary judgment by the plaintiffs and the defendants, so this is a final ruling on liability, although there may be a trial on damages if the state doesn’t settle the case.

A Wisconsin statute mandates the state to provide insurance coverage to “aid public employees in protecting themselves against the financial hardships of illness, thereby promoting economy and efficiency in public service by facilitating the attraction and retention of competent employees, by enhancing employee morale and by establishing equitable benefit standards through public employment.” A Government Insurance Board (referred to as GIB) adopts “Uniform Benefits” for the state’s Group Health Insurance Plan, which then contracts with private insurance companies to provide the mandated benefits to state employees.  Employees and their government employers pay money into an Employee Trust Fund (ETF) to finance the benefits.

The exclusion of coverage for hormones and surgery for gender transition has been part of the “Uniform Benefits” standard in Wisconsin in some form since 1994, when GIB adopted the exclusionary language, explaining that such benefits and services were generally deemed by insurance companies to be “experimental and not medically necessary.” The defendants claim that the exclusion of coverage is not total — that hormone treatment for gender dysphoria is covered “unless specifically made a course of treatment leading to or involving gender conforming surgery,” but there is some dispute about how this is interpreted and applied in practice.

“Still,” wrote Conley, “there is no dispute that mental health counseling as a stand-alone treatment for gender dysphoria is covered, whereas hormone therapy involving gender reassignment surgery is not covered; and there is no dispute that the surgery itself is not covered.” Furthermore, the “Uniform Benefits” also excludes from coverage “treatment, services, and supplies for cosmetic purposes,” with the explanation that “psychological reasons do not represent a medical/surgical necessity.”

During the Obama Administration, it appeared as if GIB might change its position, as the Department of Health and Human Services (HHS) was taking the position that the Affordable Care Act’s ban on sex discrimination in insurance benefits would include gender identity discrimination, but the guidance HHS put out stopped short of stating this meant the gender-confirming surgery must be covered. There seemed a possibility that GIB would authorizes changes for the plan year beginning January 1, 2017, but the state’s Republican administration was pressing GIB to find economies rather than expanding existing benefits.

The ETF staff at first recommended that the exclusion be removed, based on the possibility that the ACA would require coverage, and at its July 12, 2016, meeting, GIB voted unanimously to amend the uniform benefits to remove the exclusion effective January 1, 2017. But GIB subsequently reconsidered that decision at the request of the Governor’s Office, and on December 29, 2016, voted to reinstate the Exclusion if four contingencies were satisfied.  A Deputy Attorney General had sent GIB a memo arguing that the federal HHS rules interpreting the ACA to cover gender identity discrimination were “unlawful,” a position that a group of states including Wisconsin had taken in a lawsuit filed in the federal district court for the Northern District of Texas.  Subsequently, the federal district judge there issued a nationwide injunction, blocking HHS from enforcing its gender identity discrimination policy.

Also, of course, after Donald Trump was elected in November 2016, bringing in Republican majorities in both houses of Congress, Republican leaders announced their goal of repealing the ACA, so it appeared likely that the exclusion might not need to be lifted to comply with that law.

At a GIB meeting on December 13, 2016, an attorney from the Wisconsin Department of Justice recommended that “the Board follow the law as it currently stands,” noting that Wisconsin was a plaintiff in the Texas lawsuit. Ultimately, one of the contingencies that GIB embraced for rescinding their prior decision on December 30 would be the federal court in Texas issuing its injunction, the other contingencies being compliance with Wisconsin statutes, renegotiation of contracts with insurance companies that maintained or reduced premium costs, and receiving an opinion from the state’s lawyers that “the action taken does not constitute a breach of board members’ fiduciary duties.”  In January 2017, the administrators concluded that the contingencies justifying rescinding the prior vote had been met.

For Judge Conley, however, this political by-play was essentially irrelevant to his ruling on the claims by the plaintiffs, transgender state employees whose federal statutory and constitutional rights were being violated. He focused on the reasons articulated by GIB members for their votes, which varied from person to person.  Some were concerned about the Texas court’s preliminary conclusion that the Obama Administration’s interpretation of ACA was unlawful.  There was some discussion of costs, but nobody would testify that specific numbers were discussed by GIB, and several members testified that there was no discussion about the medical necessity or safety of the transition procedures, although in this litigation the state presented “expert testimony” (which Judge Conley found deficient) questioning both of those issues.

One GIB member testified that he voted to remove the exclusion because he “viewed the exclusion as discriminatory and supports the right of transgender individual to get the healthcare they need” and that “it’s not costly to add it to the group plan.” This proved to be an apt prediction of what Judge Conley ultimately found, based on the testimony of experts on behalf of the plaintiffs.

Wisconsin is within the 7th Circuit Court of Appeals’ jurisdiction.  The 7th Circuit’s rulings are binding on Judge Conley’s District Court in Madison, the state capital.  And, he found, the 7th Circuit has emerged as a champion of LGBT rights with its 2017 decisions in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), and Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).  In Hively, the appeals court held that discrimination because of sexual orientation is prohibited by Title VII’s ban on sex discrimination in employment.  In Whitaker, the court ruled that discrimination because of gender identity is prohibited by Title IX’s ban on sex discrimination in public schools.  Putting them together, Conley found it easy to conclude that gender identity discrimination violates Title VII as well, despite an old 7th Circuit decision, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984),  ruling out such claims, which has never been explicitly overruled by the circuit court.

He wrote that “all individuals, whether transgender or cisgender, have their own understanding of what it means to be a woman or a man, and the degree to which one’s physical, sexual characteristics need to align with their identity. For example, a cisgender woman who has a mastectomy for treatment of breast cancer may opt not to have reconstructive surgery.  That choice, however, may be untenable to another cisgender woman placed in the same position.  Similarly, a transgender woman may require breast augmentation to address her gender dysphoria, whereas another transgender woman may not.  Nothing about offering coverage without regard to one’s natal sex forces individuals to have surgery to conform their physical traits to their identified gender.  Instead,” he wrote, “the Exclusion implicates sex stereotyping by limiting the availability of medical transitioning, if not rendering it economically infeasible, thus requiring transgender individuals to maintain the physical characteristics of their natal sex.  In other words, the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.  In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”

In other words, this judge really “gets it.” The opinion exhibits a profound understanding of why this challenged Exclusion is really a form of sex discrimination, which is outlawed by the relevant statutes.  Furthermore, since it is sex discrimination in a government policy, it is subject to “heightened scrutiny” under the Equal Protection Clause, throwing the burden on the government to show that the policy substantially advances important state interests.  And, as to that, Judge Conley found that the evidence presented by the state as to its purported reasons for rejecting ETF’s recommendation falls short.

“Not only is the record devoid of any evidence to show that GIB members voted as they did for cost or efficacy reasons,” he wrote, “the evidence is overwhelming that the actual or genuine reason for the reinstatement [of the Exclusion] had to do with the DOJ’s guidance – specifically, the belief that the Texas court’s entry of an injunction absolved defendants of any legal obligation to provide coverage.” But, confusingly, the defendants did not put this forward as their reason in support of their motion for summary judgment, instead pointing to costs and efficacy, as to which their expert’s supporting testimony was woefully deficient.  Indeed, Judge Conley questioned whether he actually qualified as an “expert” at all.  “Accordingly,” he wrote, “the court concludes that the Exclusion does not survive heightened scrutiny,” and thus is unconstitutional.

While Judge Conley concluded that the individual named government defendants who were sued in their official capacity were entitled to qualified immunity against personal liability, since thus far there is no 7th Circuit or Supreme Court precedent holding that the exclusion is unconstitutional, this is no bar to equitable and monetary relief for the plaintiffs against the state agencies who made the challenged decisions.

This doesn’t conclude the case before Judge Conley. In the final part of his opinion, titled “Trial Plan,” he laid out the various claims for relief that plaintiffs can pursue at trial, having won a summary judgment that the Exclusion violates their statutory and constitutional rights.  “While the court will determine any equitable relief at trial, as well as award of attorneys’ fees and costs,” he wrote, “defendants have demanded a jury trial as to plaintiffs’ claims for compensatory and/or punitive damages, which is their right.  And so a jury there shall be.”  The court scheduled a pretrial conference for the last week in September.

The role of the jury in such a case is to determine that amount of money to which the plaintiffs are entitled for the violation of their rights. The state is undoubtedly counting on a jury of taxpayers to be revolted by the thought of awarding substantial sums to transgender plaintiffs, but they should not be so confident, as public opinion has been swinging behind the transgender rights movement. The judge will determine appropriate attorneys’ fees and costs to award to plaintiffs as the prevailing parties on the merits of their claims.

On September 24, Judge Conley issued an Opinion and Order setting a trial date on damages of October 9, 2018, and ruling on motions in limine and related motions.  Most notably, he found moot a motion to exclude testimony by the defendants’ experts, inasmuch as their testimony went to the issues of cost and efficacy, which were no longer in play as a result of the grant of summary judgment on the merits to plaintiffs. See 2018 U.S. Dist. LEXIS 162757.

Plaintiffs Alina Boyden and Shannon Andrews are represented by John Anthony Knight of the ACLU Foundation, Chicago, Laurence J. Dupuis, of the ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, and local counsel Michael Godbe and Nicholas E. Fairweather, of Hawks Quindel, S.C., Madison, WI.

A Second US District Judge Blocks Trump’s Ban on Transgender Military Service

Posted on: November 21st, 2017 by Art Leonard No Comments

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 Memorandum implementing his July 26 tweet announcing a ban on all military service by transgender individuals. Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md.). The November 21 action by District Judge Marvin J. Garbis of the District of Maryland came just three weeks after a federal district judge in the District of Columbia, Colleen Kollar-Kotelly, had issued a preliminary injunction against two directives in Trump’s three-directive memo.  (See Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).  Judge Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals who had standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

In his August 25 Memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on accession of transgender members, scheduled to end on January 1, 2018, be extended indefinitely. His third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with a possible individual exception in cases where procedures were already under way and failure to complete them would endanger the health of the individual.  (Of course, those individuals, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued a memorandum establishing an “interim policy,” announcing that he would meet the President’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit in the U.S. District Court in Maryland on August 8. Three other lawsuits challenging the transgender ban are pending.  One filed on August 9 in the District of Columbia District Court has already resulted in the preliminary injunction issued by Judge Kollar-Kotelly.  The others are pending in the District Courts in Seattle and Los Angeles, where the plaintiffs are also seeking preliminary injunctions.

Judge Garbis leaned heavily on Judge Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate in this case. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Continued Garbis, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Indeed, Garbis concluded that heightened scrutiny was not even necessary to rule for the Plaintiffs on this motion. “The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding rationality test applied to all government policies.

Garbis closely followed the D.C. Court’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that nobody had been harmed yet so nobody had standing to bring the case, and that it was not yet ripe for judicial resolution when Mattis had not yet made his implementation recommendations to the President. The adoption of a policy that violates equal protection is deemed a harm even before it is implemented, and the stigmatic harm of the government officially deeming all transgender people as unfit to serve the country is immediate.  The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, thus undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The D.C. Court had accepted the government’s argument that appropriate adjustments had vitiated any negative effect on the plaintiffs in that case who were seeking transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the strongest statement in his opinion, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement.  The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.  A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal, without prejudice, of their claim that the policy violates 10 U.S.C. sec. 1074(a)(1), a statute the entitles active duty and reserve military members to medical care in military treatment facilities. The plaintiffs claimed that the sex reassignment directive exceeded the President’s authority by attempting to override a statute by “denying necessary medical care to a group of service member he happens to disfavor,” and that doing so through a unilateral White House memorandum rather than a regulation adopted pursuant to the Administrative Procedure Act was unlawful.  Garbis characterized the plaintiffs’ factual allegations in support of this claim as “conclusory” and thus not sufficient to meet the civil pleading requirement.  However, he wrote, “Perhaps Plaintiffs could assert an adequate and plausible statutory claim,” so he dismissed without prejudice, allowing the plaintiffs to seek permission to file an amendment that “adequately asserts such a claim if they can do so.”  This dismissal does not really affect the substance of the relief granted by the preliminary injunction or sought in the ongoing case, because Judge Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery, exactly the part of the Trump memorandum targeted by the statutory claim.

The Justice Department will likely seek to appeal this ruling to the 4th Circuit Court of Appeals, just as it had announced that it would appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit Court of Appeals.  By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles.  Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 Memorandum and disavow the July 26 tweet.

Since the Administration takes the position that Presidential tweets are official policy statements of the President, a disavowal of the tweets would be necessary to render the policy fully withdrawn, one presumes, although this is unexplored territory. Interestingly, Judge Garbis followed Judge Kollar-Kotelly’s example by including a cut and paste version of the Trump tweet sequence in the background section of his opinion, and specifically identified policy announcement by tweet as a departure from normal procedure that contributes to the constitutional analysis.

Judge Garbis, a Senior U.S. District Judge, was appointed by President George H.W. Bush.

Pennsylvania’s Next: U.S. District Judge Orders State to Allow and Recognize Same-Sex Marriages, and State Complies!

Posted on: May 20th, 2014 by Art Leonard No Comments

U.S. District Judge John E. Jones III, a Republican appointed to the federal district court in Harrisburg, Pennsylvania, by President George W. Bush in 2002, ruled on May 20 in Whitewood v. Wolf that Pennsylvania’s statutes banning same-sex marriages in the state or recognition of same-sex marriages formed outside the state violate the 14th Amendment’s Due Process and Equal Protection Clauses. Judge Jones issued an order declaring both statutes unconstitutional and permanently enjoining the state from enforcing them. Neither his opinion nor his order mentioned any stay, but it seemed likely that Governor Tom Corbett would seek a stay, first from Judge Jones and then, if one was not forthcoming, from the 3rd Circuit Court of Appeals, which is based in Philadelphia. But Governor Corbett surprised everybody by waiting one day and then announcing he would not appeal the ruling, making Pennsylvania the 19th marriage equality state. Meanwhile, shortly after Judge Jones’s ruling was announced, same-sex couples began getting marriage licenses.

The American Civil Liberties Union filed this lawsuit last July on behalf of what Judge Jones described as “eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples.” Some of the couples are seeking marriage licenses, others are seeking recognition of their out-of-state marriages, the teenagers complain about the deprivations they suffer from their parents not being married, and the widow, who married her late partner out of state, complains about not being recognized as a surviving spouse. One of the state’s defenses to this lawsuit was that the plaintiffs had failed to show any injury for the court to redress, a nonsensical position that Judge Jones dispatched efficiently. He found that the “stigmatizing harms” imposed by the statutes, which were passed in 1996 in response to a marriage equality lawsuit in Hawaii, were “cognizable” as a matter of law, and, additionally, that “plaintiffs suffer a multitude of daily harms, for instance, in the areas of child-rearing, healthcare, taxation, and end-of-life planning.” The state’s other main defense was that this case is precluded by the Supreme Court’s 1972 Baker v. Nelson ruling that the issue of same-sex marriage did not raise a “substantial federal question.” All of the recent marriage equality decisions have rejected this argument, pointing to the significant developments in American constitutional law since 1972, not least last year’s Supreme Court ruling striking down the Defense of Marriage Act, to conclude that exclusion of same-sex couples from marriage now presents a very substantial federal question.

Judge Jones found the Pennsylvania statutes unconstitutional on two separate constitutional theories: due process and equal protection.

The due process theory rests on Supreme Court decisions finding that the “right to marry” is a fundamental right, guaranteed to each individual. Judge Jones rejected the state’s argument that because “the United States Supreme Court has never recognized that the fundamental right to marry includes the right to marry a person of one’s choice,” the state’s marriage laws did not violate the plaintiffs’ due process rights. After briefly summarizing the Supreme Court’s important marriage decisions, Judge Jones wrote, “this Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right,” he continued, “but is rather a right that these individuals have always been guaranteed by the United States Constitution.” He went on to find that this right encompassed both the right to marry and the right to remain married after crossing a state line, so the due process theory served to invalidate both Pennsylvania’s ban on same-sex marriage and its ban on recognizing out-of-state same-sex marriages.

Turning to equal protection, the judge noted that one branch of equal protection jurisprudence would apply strict scrutiny to any law that discriminates regarding a fundamental right, and nobody contends that same-sex marriage bans would survive such strict scrutiny. However, setting that issue aside, he proceeded to analyze whether discrimination because of sexual orientation requires heightened scrutiny. The 3rd Circuit Court of Appeals has never ruled on the question, and neither has the Supreme Court, at least directly. Judge Jones noted that several of the other courts that have issued marriage equality rulings, in addition to the 9th Circuit in a recent jury selection case, have held that heightened scrutiny is appropriate for sexual orientation claims, and that a review of the Supreme Court’s gay rights decisions suggests that the Court has been using a more demanding standard of judicial review than the traditional deferential rational basis test. After reviewing the factors that courts generally consider in deciding whether a particular form of discrimination is subject to heightened scrutiny review, Jones concluded that this was the appropriate level of review.

Consequently, presuming the ban to be unconstitutional, Jones considered whether there was an “important governmental objective” to support the ban. Since the state had been arguing in support of using the deferential rational basis test, its arguments fell quite short. Jones identified “promotion of procreation, child-rearing and the well-being of children” and “tradition” as the only interests the state was proposing. “Significantly,” he wrote, “Defendants claim only that the objectives are ‘legitimate,’ advancing no argument that the interests are ‘important’ state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.”

Like the other trial judges ruling in marriage equality cases over the past several months, Judge Jones rose to an eloquent conclusion. “The issue we resolve today is a divisive one,” he wrote. “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not makes its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of ‘separate but equal.'” After citing the Supreme Court’s key ruling against racial segregation, Brown v. Board of Education (1954), he continued, “In the sixty years since Brown was decided, ‘separate’ has thankfully faded into history, and only ‘equal’ remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Pennsylvania’s marriage statutes require a three-day process to apply for and receive a marriage license. Thus, unless individual couples can secure some sort of waiver of this waiting period, it is possible that speedy action by the state to obtain a stay could avoid what happened in Utah, Arkansas and Michigan, where same-sex marriages took place before the state was able to secure a stay pending appeal. In those states, one could apply for a license, obtain it immediately, and then quickly have a marriage ceremony, but Pennsylvania’s laws do not routinely provide such speed. Judge Jones’ decision to issue his opinion on a Tuesday, rather than right before a weekend, made it more likely that the state might secure a stay before marriages could take place.

Taking together both the rulings on the right to marry and those rulings that just dealt with marriage recognition, Judge Jones’s decision was the fourteenth consecutive ruling by a state or federal court since last June’s U.S. Supreme Court DOMA decision to rule in favor of LGB plaintiffs seeking marriage rights or recognition. Since then no court has rejected such a claim, although many of the trial court decisions are “on hold” due to stays pending appeal. In New Mexico and New Jersey, the states’ highest courts last year agreed with their trial courts, and in Oregon, yesterday, where the state signified in advance that it would not appeal a marriage equality ruling, same-sex marriages could quickly begin taking place. Each new decision now cites the lengthening list of prior decisions, the sheer weight of which is building to a daunting body of precedent, even though viewed individually trial court rulings may have little precedential weight. We still await the first federal appellate ruling that the 14th Amendment of the U.S. Constitution guarantees to gay people the same individual right to marry the partner of their choice. The U.S. Courts of Appeals for the 10th Circuit (in Denver) and the 4th Circuit (in Richmond) have heard arguments on cases arising from Utah, Oklahoma and Virginia, and other circuits will hear arguments soon from other states. While there may be more federal trial court decisions in the months ahead, with scores of cases pending in all but three of the remaining states that ban same-sex marriage, the next truly significant development will be the first court of appeals ruling, which could come at any time.

Note added a few hours after posting this: Judges can grant individual waivers of the three-day waiting period, and I understand that some judges have already granted waivers and licenses have been issued to some couples. So no matter how fast the state is in requesting a stay, some couples will be getting married before that can happen.

Federal Court Says Utah Must Recognize Same-Sex Marriages That Were Celebrated Before the Supreme Court Stay

Posted on: May 19th, 2014 by Art Leonard No Comments

U.S. District Judge Dale A. Kimball ruled on May 19 that the state of Utah must recognize the same-sex marriages that were performed in the state from December 20 to January 6. Another federal district judge, Robert Shelby, ruled on December 20 in Kitchen v. Herbert that Utah’s ban on same-sex marriage was unconstitutional. Judge Shelby, and subsequently the 10th Circuit Court of Appeals, refused to stay that decision pending appeal and more than 1300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court responded affirmatively to the state’s request for a stay pending appeal. After the Supreme Court issued its stay, Governor Gary Herbert declared that the same-sex marriages that had been performed were “on hold” as the stay had “revived” the state’s marriage ban. In this ruling in Evans v. State of Utah, Judge Kimball found that the state is barred by the Due Process Clause of the 14th Amendment from putting legally valid marriages “on hold,” but temporarily stayed his own ruling for 21 days to give the state an opportunity to appeal to the 10th Circuit.

There was some confusion on the part of the state government after Judge Shelby issued his injunction against the state’s marriage ban. Some clerks began issuing licenses quickly, while others hesitated, awaiting instructions from the state government. Finally, upon the attorney general’s advice that clerks who refused to issue licenses could be held in contempt by the federal district court, many clerks fell into line and issued more than 1300 licenses, as state officials announced that such marriages were valid. However, when the Supreme Court issued its stay and the governor declared that those marriages were now “on hold” because the state could not recognize them under the “revived” laws, the ACLU filed suit on behalf of several recently-married couples, seeking an injunction requiring the court to recognize the marriages.

The result was to interfere with the ongoing efforts by recently-married same-sex couples to assert their rights, including several adoption proceedings that were thrown into limbo as Utah trial judges were uncertain how to proceed. Indeed, the state is facing the threat of a contempt proceeding from one trial judge who issued an adoption order that state officials are refusing to honor by issuing an appropriate birth certificate, and there are already questions pending at the Utah Supreme Court about the status of these marriages. The court has temporarily stayed various adoption proceedings while it decides whether the state must recognize the marriages. It will be interesting to see what weight it accords to the federal district court’s ruling on vested rights, which depends on that court’s reading of Utah precedents.

The ACLU filed its lawsuit in state court, but the state removed the suit to federal district court, and opposed the plaintiffs’ motion to certify to the Utah Supreme Court the question whether couples legally married under Utah law have vested rights in their marriage that could not be taken away by the state without a compelling interest. The plaintiffs moved for a preliminary injunction, arguing that as a matter of law their vested rights were being abridged by the state for no valid reason. The state, in response, argued that the Supreme Court’s stay had a retroactive effect, restoring the marriage ban going back to December 20, 2013, thus rendering the marriages invalid. And, after having opposed the plaintiff’s motion to certify the question to the Utah Supreme Court, the state reversed course and urged Judge Kimball to certify virtually the same question, but Judge Kimball refused to do so, finding that Utah precedents are clear on the question of vested marriage rights.

Judge Kimball found that the state’s arguments were contradicted by well-established principles of Utah law as well as the Due Process Clause of the 14th Amendment. Judge Kimball placed heavily reliance on the California Supreme Court’s ruling in the somewhat analogous situation created when California voters adopted Proposition 8 in November 2008 after thousands of same-sex couples had married in the five months after that court’s marriage equality decision went into effect in June 2008. In that case, Strauss v. Horton, the California Supreme Court said that those who had married at a time when same-sex marriage was legal had vested rights in their marital status and everything that went with that status, which could not be taken away by a subsequent constitutional amendment. Kimball found that Utah cases dating back to the 19th century had also taken the position that once a couple was legally married, they had vested marriage rights protected against retroactive rejection by the state.

Utah’s attorneys argued that the California situation with Proposition 8 was distinguishable. The Utah licenses were issued in compliance with an injunction by a single federal trial judge that the state had promptly appealed. Thus, they said, it was not in that sense a final order in the case, unlike the California Supreme Court’s ruling on marriage equality, which could only be overturned by a state constitutional amendment. (That amendment was subsequently ruled unconstitutional by a federal district court in the famous Perry v. Schwarzenegger case, which went into effect last June after the U.S. Supreme Court ruled that the proponents of Proposition 8 did not have standing to appeal the court’s ruling, which had not been appealed by state officials.) Judge Kimball was not persuaded by this distinction, and he also pointed out the strong bias against retroactive application of new legal rulings. The Supreme Court did not issue any explanation about the impact of the stay it issued on January 6, and Judge Kimball pointed out that such an action would not be deemed to have any sort of retroactive effect unless the Supreme Court had voiced such an intention.

He also found that there were strong Utah judicial precedents concerning vested rights in marriage, holding that such rights vest when the marriage was performed. According to Judge Kimball, from the time Judge Shelby issued his injunction until the time the Supreme Court stayed the injunction pending appeal, it was legal for same-sex couples to marry in Utah, and as soon as any such marriage was performed, the couple had vested rights in the marriage that could not be abridged by the state. He pointed out that this was consistent with the Supreme Court’s DOMA ruling, U.S. v. Windsor. “The Windsor Court held that divesting ‘married same-sex couples of the duties and responsibilities that are an essential part of married life’ violates due process,” he wrote.

Judge Kimball went through the wording of the Utah constitutional and statutory same-sex marriage bans, and found that all of those provisions were stated in the present tense and made no mention of retroactive application. Thus, if one construed the Supreme Court stay to have “revived” those provisions while the case was on appeal, there was no basis to apply them retroactively.

“The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before the Plaintiffs entered into their marriages,” he wrote. “However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that ‘takes away or impairs vested rights acquired under existing laws in respect to transactions or considerations already past.’ Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages ‘on hold,’ necessarily ‘takes away or impairs vested rights acquired under existing law.” Judge Kimball concluded that even if Judge Shelby’s decision is eventually reversed and the injunction dissolved, the marriages that were performed would remain valid under the vested rights theory and the strong policy against retroactive application of law.

After analyzing the factors applied in the 10th Circuit to determine whether a preliminary injunction should be issued, Judge Kimball found that all the factors had been satisfied. “Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim,” he wrote, and he found that they had also established the necessary irreparable harm if their marriages were not recognized. On the other hand, he found, “The State has no legitimate interest in depriving Plaintiffs of their constitutional rights,” and he also found “no harm to the State based on an inability to apply the marriage bans retroactively.” As to the public interest, “the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages.”

The state’s lawyers had asked the court to stay its preliminary injunction so that the state could appeal it to the 10th Circuit. Judge Kimball concluded that “the State has not met its burden of establishing the factors required for a stay pending appeal,” but decided to exercise discretion to grant to the state a “limited 21-day stay during which it may pursue an emergency Motion to Stay with the Tenth Circuit.” His explanation: “The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.” However, unless the 10th Circuit responds favorably to the state’s request, Judge Kimball’s order will go into effect requiring recognition of the marriages.

The plaintiffs were represented at the court’s hearing on the preliminary injunction motion by attorneys Erik Strindberg, Joshua A. Block and John Mejia.

Judge Kimball was appointed to the federal district court by President Bill Clinton in 1997 and took senior status and a reduced caseload in November 2009 upon reaching age 70. He teaches at Brigham Young University Law School, and is an active member of the Mormon Church, in which he has held various leadership positions.