Although the City of Anchorage, Alaska, has a public accommodations law that prohibits discrimination because of gender identity, a federal judge has ruled that the Downtown Hope Center, a faith-based non-profit organization that runs homeless shelters in the city, may be able to refuse to provide a place in its women’s shelter for transgender women. The case is Downtown Soup Kitchen d/b/a Downtown Hope Center v. Municipality of Anchorage, 2019 WL 3769623 (D. Alaska, August 9, 2019).
The ruling by U.S. District Judge Sharon L. Gleason is based not on a religious exemption, but rather on the court’s suggestion that the shelter would not be considered a public accommodation under the municipal law. The court was ruling on a motion by the shelter for a preliminary injunction against the Anchorage Equal Rights Commission, temporarily barring it from enforcing the Anchorage Municipal Code (AMC) anti-discrimination provisions against the shelter pending a final ruling on the merits of the shelter’s lawsuit.
In order to rule on the motion, the judge had to decide whether the shelter was likely to succeed on the merits of its claim that it is not subject to the AMC anti-discrimination provisions or, if subject to them, that it would enjoy a religious exemption from compliance.
“Hope Center maintains that its religious beliefs include that a person’s sex is an immutable God-given gift,” wrote the judge, “and that it is wrong for a person to deny his or her God-given sex.” The shelter argued that requiring it to house transgender women in its women’s shelter would be against the shelter’s “religious beliefs.” But it also insisted throughout this case that it is not subject to Anchorage’s anti-discrimination ordinance, and that proved the winning argument at this stage of the litigation.
On Friday, January 26, 2019, at about 6 pm, the police brought “Jessie Doe,” who identifies as a transgender woman, to the Hope Center. “Doe smelled strongly of alcohol, was very agitated, was aggressive in body language, and had an open wound above one eye,” wrote Gleason. The director of the shelter, noting Doe’s condition, recommended that she go to the hospital for care of the eye wound. Doe agreed, and the shelter paid for a taxi to take her to the hospital. The next day, Doe returned to the shelter at about 2 pm and sought admission, but was denied under the shelter’s rule that Saturday admissions before 5:45 pm were limited to those who had stayed at the shelter Friday night. The director later learned that Doe had started a fight at another shelter, which had banned her until July 4, 2018.
Doe filed a complaint with the Anchorage Equal Rights Commission, claiming that the shelter was a public accommodation and had actually excluded her because of her sex and gender identity in violation of the AMC. The Commission notified the shelter of the complaint and scheduled a fact-finding conference. The shelter director wrote back that the shelter did not consider itself to be a public accommodation, that it had not discriminated against Doe because of her gender identity, and that it “has First Amendment religious liberty and association rights to operate as it does.”
Several exchanges of correspondence ensued, and the Commission ultimately filed a complaint against Hope Center, claiming that its attorney had stated or implied in various media that transgender individuals would not be allowed to be sheltered at Hope Center, in potential violation of both the public accommodations provision and a provision banning discrimination by owners and operators of real property. Ultimately, Hope Center filed its own lawsuit in federal court, claiming a violation of its 1st Amendment rights and reiterating its argument that it was not subject to the prohibitions in the city ordinance. The shelter asked the court to declare that it was not subject to the ordinance.
The AMC makes it an “unlawful practice” for a “public accommodation” to deny services to somebody because of their sex or gender identity or to publish or circulate a policy denying services to people because of their sex or gender identity. The ordinance defines a public accommodation as “any business or professional activity that is open to, accepts or solicits the patronage of, or caters or offers goods or services to the general public, subject only to the conditions and limitations established by law and applicable alike to all persons.”
The AMC also makes it an unlawful practice for the owner or operator of “real property” to refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a person because of sex or gender identity, or to discriminate against a person because of sex or gender identity in a term, condition or privilege relating to the use of real property. This provision lists specific exceptions to its coverage. “Shelters for the homeless” are specifically listed as being exempt from the “real property” anti-discrimination provision.
Doe’s complaint filed with the Commission claimed a violation of the public accommodations provision, but did not mention the real property provision. The Commission’s subsequent complaint invoked the real property provision as well. Judge Gleason decided that the real property provision, and particularly its explicit exemption of homeless shelters, was relevant to the shelter’s claim that it was not subject to either provision.
Judge Gleason pointed out that she would not have to determine whether the shelter enjoys a constitutional free exercise privilege to deny access to a transgender person if she ultimately concluded that the shelter was not subject to the requirements of the anti-discrimination ordinance.
“It is clear from the structure and plain text of [the ordinance] that the drafters of the AMC intended to exempt homeless shelters from the prohibitions on conduct articulated” in the AMC section governing discrimination regarding real property. “Furthermore,” wrote Gleason, “the Alaska Supreme Court has concluded that the purpose of that section ‘is to prohibit discrimination in the rental housing market.’ Applying the provision’s prohibitions to Hope Center’s homeless shelter would not further this purpose. Hope Center is thus likely to succeed as to its contention that [the real property provision] does not apply to Hope Center’s homeless shelter.”
Judge Gleason observed that unlike the real property provision, the public accommodations provision “does not include language that expressly exempts homeless shelters from its prohibitions. Nevertheless, Alaska’s rules of statutory interpretation and the structure of the Anchorage Municipal Code as a whole suggest that homeless shelters are not public accommodations as defined in [the public accommodations provision.] For if the term ‘public accommodation’ . . . is read to apply to homeless shelters, then the exemption for homeless shelters contained in [the real property] provision would have no effect. Pursuant to Alaska Supreme Court precedent, this court must ‘interpret each part or section of a statute [or municipal code] with every other part or section, so as to create a harmonious whole.’ To give effect to the exemption for homeless shelters contained in [the real property provision], the Court concludes that Hope Center is not an ‘owner or operation of a public accommodation’ within the meaning of [the public accommodation provision].”
Having reached this conclusion, Gleason opined that the shelter was not subject to the prohibition against discrimination in the AMC.
Her conclusion does not really make sense. If the purpose of the real property provision is to “prohibit discrimination in the rental housing market,” it makes total sense for the AMC to exclude homeless shelters from coverage under the real property provision, since they are not part of the “rental housing market.” That says nothing about whether they should be covered by the public accommodations provision. The point is that homeless shelters do not provide rental housing, they provide a service of temporary shelter to people who cannot afford housing. So it makes total sense to treat them as public accommodations, as they provide a service to the public. The commission should seek to appeal this ruling.
However, having concluded that the AMC does not apply to the shelter, Judge Gleason went on to accept the shelter’s argument that failing to issue a preliminary injunction would result in irreparable harm to the shelter, noting that courts have found that a violation of constitutionally protected religious freedom rights constitutes an irreparable injury. The court characterized a preliminary injunction in this case as ‘reserving the status quo’ pending a final decision on the merits of the case.
Also, as a result of her conclusion that the exemption from the real property provision required an exemption from the public accommodations provision, the judge concluded that “the issuance of a preliminary injunction in this instance would not unduly limit Anchorage’s ability” to enforce its anti-discrimination ordinance, “as the actions Hope Center seeks to enjoin appear to be beyond the scope of the relevant provisions.” She also concluded that because, in her opinion, the AMC provisions do not apply to the Center, a preliminary injunction against enforcing anti-discrimination requirements against the shelter “will not significantly curtail the public interest.” On the other hand, prosecution of the anti-discrimination complaints by the Commission might, according to the shelter’s allegations, adversely affect its ability to provide shelter to homeless women.
The court’s conclusion is subject to sharp criticism. The exemption language in the real property provision shows that the legislators knew how to exempt a particular kind of entity from coverage of an anti-discrimination provision, so the fact that they did not include such a specific exemption in the public accommodations provision should reflect an intention to treat homeless shelters the same as other entities that provide services to the public. And, the reasons for exempting homeless shelters from the real property provisions do not support exempting them from the public accommodations provisions.
The Commission had also argued in opposition to the preliminary injunction that the court should abstain from issuing any orders in this case rather than interfere with the ongoing process of the Commission in handling the complaints that have been filed, but Judge Gleason refused to abstain, even though generally federal courts will abstain from interfering with ongoing state administrative proceedings before they have reached a conclusion, unless the operation of the state proceeding would impair the exercise of a federally protected right, and even though the Commission said that it would not take any action against the shelter as long as this lawsuit had not been finally decided by the federal court.
The federal court’s interpretation of state and local laws is not binding on the state courts. The Anchorage Commission can seek a review of this holding from the 9th Circuit Court of Appeals, which has jurisdiction over the federal courts in Alaska. That court might consider it appropriate to refer the question of interpretation of the AMC to the Alaska Supreme Court.
Judge Gleason was nominated by President Barack Obama and took the bench in 2012. She is the first woman to serve as a federal district judge in Alaska.