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Supreme Court Takes a Pass on Hawaii B&B Discrimination Case

Posted on: March 21st, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on March 18 that it will not review a decision by Hawaii’s Intermediate Court of Appeals, which ruled in February 2018 that a small bed & breakfast operating in a private home in the Mariner’s Ridge section of Hawai’i Kai, violated Hawaii’s civil rights law by denying accommodations to an unmarried lesbian couple who were planning a trip to Hawaii to visit a friend.  Hawaii’s civil rights law forbids businesses that are “public accommodations” from discriminating in providing their services based on the sexual orientation of customers.  Cervelli v. Aloha Bed & Breakfast, 415 P.3d 919 (Int. Ct. App. Haw. 2018), cert. denied by Hawaii S. Ct., 2018 WL 3358586 (July 10, 2018), cert. denied, No. 18-451, 2019 WL 1231949 (U.S. Sup. Ct., March 18, 2019).

The key issues raised in the case were whether such an operation is covered by the public accommodations law, and whether the owner, Phyllis Young, who lives there and operates it personally, could successfully raise constitutional claims against being required to accommodate a lesbian couple in her home.

Young operates “Aloha B&B” out of her four-bedroom house, and has averaged between one hundred and two hundred customers a year.  She advertises on her own website and some third-party websites.  Diane Cervelli and Taeko Bufford, a “committed” lesbian couple, emailed to inquire about renting a room for their vacation trip.  Young immediately responded by email that a room was available and explained how to make a reservation.  Cervelli phoned two weeks later to book the room.  As Young was taking down her information, Cervelli mentioned that she would be accompanied by another woman, and Young asked whether they were lesbians.  When Cervelli said “Yes,” Young responded, “We’re strong Christians.  I’m very uncomfortable in accepting the reservation from you.” Young refused the reservation and hung up on Cervelli.

Bufford then called and attempted to reserve the room, but again Young refused.  Bufford asked her whether it was because she and Cervelli were lesbians, and Young said “Yes.”  Young referred to her religious beliefs as the reason she was refusing the reservation.  “Apart from Plaintiff’s sexual orientation,” wrote Judge Craig Nakamura for the court of appeals, “there was no other reason for Young’s refusal to accept Plaintiffs’ request for a room.”

The women filed a discrimination claim with the Hawaii Civil Rights Commission, which concluded that they had a legitimate case.  Then Cervelli and Bufford filed a lawsuit against Aloha B&B in the state circuit court, represented by Lambda Legal with local attorneys from Honolulu, and the Civil Rights Commission intervened in the lawsuit as a co-plaintiff.  Attorneys from Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, joined with local attorneys to defend the B&B.

Judge Edwin C. Nacino of the circuit court easily rejected the B&B’s argument that it was not a public accommodation, but rather a landlord that would not be covered by this law.  The law on discrimination in real estate transactions prohibits sexual orientation discrimination in residential rentals, but doesn’t apply to facilities with four or fewer units.  While the B&B has only four bedrooms, the evidence of 100-200 rentals per year made clear that Young’s business came within the “public accommodations” definition.  Young admitted that she only rented rooms for short stays, so this was a transient rather than a residential facility.

Young claimed that requiring her to accommodate the lesbian couple in her home violated her constitutional right to privacy, freedom of intimate association and free exercise of religion.  The circuit court rejected these defenses, and awarded summary judgment to the plaintiffs on the issues of liability and injunctive relief.  Since the defendant was planning to appeal, the issue of damages was put on hold pending a final decision on the case.

The appeals court affirmed the trial judge on all points.  Judge Nakamura wrote that “to the extent that Young has chosen to operate her bed and breakfast business from her home, she has voluntarily given up the right to be left alone,” thus rejecting her privacy claim.  Opening up her residence to 100-200 paying guests a year is inconsistent with such a privacy claim.  Furthermore, although Young lives there, the extent of commercial activity means that “it is no longer a purely private home.”  And, furthermore, “the State retains the right to regulate activities occurring in a home where others are harmed or likely to be harmed,” and in this case “discriminatory conduct caused direct harm to Plaintiffs and threatens to harm other members of the general public.”

The court similarly rejected the intimate association claim, which, said the court, applies to family relationships and other small-group settings.  “The relationship between Aloha B&B and the customers to whom it provides transient lodging is not the type of intimate relationship that is entitled to constitutional protection against a law designed to prohibit discrimination in public accommodations,” said the appeals court.

Finally, the court found Young’s federal constitutional religious freedom claim would be foreclosed by Employment Division v. Smith, 494 U.S. 872 (1990), where the U.S. Supreme Court held that “neutral laws of generally applicability need not be justified by a compelling governmental interest even when they have the incidental effect of burdening a particular religious practice,” wrote Nakamura, summarizing the holding.  Fueled by ADF’s representation, Young tried to argue that the appeals court should impose a stricter test using the Hawaii Constitution’s protection of religious freedom, but the court refused to do so, stating that in its view Hawaii’s civil rights law would survive the most demanding constitutional test in any event.

“Assuming, without deciding, that Aloha B&B established a prima facie case of substantial burden to Young’s exercise of religion, we conclude that the application of [the Hawaii civil rights law] to Aloha B&B’s conduct in this case satisfies the strict scrutiny standard,” wrote Nakamura,” since “Hawaii has a compelling state interest in prohibiting discrimination in public accommodations,” as the legislature has declared “the practice of discrimination because of sexual orientation in public accommodations is against public policy.”  The court concluded that the civil rights law “is narrowly tailored to achieve Hawaii’s compelling interest in prohibiting discrimination in public accommodations,” as the law “responds precisely to the substantive problem which legitimately concerns the State.”

The Hawaii Supreme Court refused to hear an appeal, so Young took the case to the Supreme Court, posing two questions: “Whether holding Mrs. Young liable without fair notice that her actions could be unlawful violates the Fourteenth Amendment’s Due Process Clause, and whether the Commission’s efforts to punish Mrs. Young for exercising her religious beliefs in her own home violate   the First Amendment’s Free Exercise Clause?”

The first question reflected Young’s belief that she was covered by the exemption for rental operations with four or fewer bedrooms, so, as she claimed, when she turned down Cervelli and Bufford she sincerely believed her business was not covered by the civil rights law, and it would be fundamentally unfair to impose liability on her.  The court of appeals had easily rejected this argument, and it is not the kind of argument that the Supreme Court was likely to address as a failure of procedural due process of law.

The second question was intended to tempt members of the Court who have been calling for a reconsideration of the Employment Division v. Smith precedent, which was controversial when decided and actually led to the enactment of the Religious Freedom Restoration Act (RFRA) by Congress and similar laws by many state legislatures.  Prior to that ruling, the Supreme Court had required the government to show a “compelling interest” when laws that burden free exercise of religion were challenged in court.

Employment Division was seen by many as a sharp departure from prior precedents, liberal Supreme Court justices dissented from the Court’s opinion by Justice Scalia, and a broad coalition spanning the political spectrum among religious organizations successfully lobbied Congress to pass RFRA, ultimately reimposing the “strict scrutiny” standard when federal laws impose a substantial burden or religious free exercise.

Despite calls for reconsidering Employment Division, most prominently by Justice Neil Gorsuch in his concurring opinion in Masterpiece Cakeshop last June, this petition evidently did not tempt at least four members of the Court to use this case as a vehicle to expand the religious freedom of business owners to turn down customers whom they found objectionable based on the owners’ religious beliefs. The Court avoided such reconsideration last Term in Masterpiece Cakeshop by deciding that case on a different ground.  Of course, if the Court wants to address these issues directly, they still have pending a petition to review an Oregon state court ruling against a baker who refused to make a wedding cake for a same-sex couple, Klein v. Oregon Bureau of Labor and Industries, 289 Or. App. 507, review denied by Oregon S. Ct., 363 Or. 224 (2018), so we continue to wait for another shoe to drop.

Meanwhile, unless a settlement is negotiated, Young faces a renewed proceeding in the Hawaii circuit court to determine what damages, if any, she will be ordered to pay to Cervelli and Bufford for unlawfully discriminating against them.

Federal Appeals Court Renders Decisive Win for Transgender Students in Pennsylvania

Posted on: July 1st, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals issued an extensive written opinion on June 18, explaining the decision it had announced on May 24 to reject a legal challenge by some students and parents to the Boyertown School District’s decision to let transgender students use facilities consistent with their gender identity.  The opinion, written by Circuit Judge Theodore McKee, is a total victory for the school district and its transgender students, upholding the trial court’s refusal to enjoin the District’s trans-friendly policies while the case is being litigated.  Doe v. Boyertown Area School District, 2018 U.S. App. LEXIS 16323, 2018 WL 3016864.

This lawsuit was originally filed in March 2017 by Alliance Defending Freedom (ADF), the Christian law firm that specializes in opposing policies protective of LGBT rights, representing some students at the Boyertown, Pennsylvania, schools, who objected to sharing facilities with transgender students. Some of the students’ parents or guardians are also plaintiffs in the case.  Citing an incident where one of the plaintiffs actually encountered a transgender student in a restroom, they claim that the District’s policy creates a “hostile environment” for the non-transgender students, violating their rights under Title IX, the Constitution, and the Pennsylvania common law right of privacy.

Title IX is a federal statute that provides that students at schools that receive federal financial assistance may not be deprived of equal educational opportunity on account of sex. In addition, the 14th Amendment has been interpreted to forbid sex discrimination by public institutions, as well as to protect the privacy rights of individual citizens from invasion by the government.  Pennsylvania’s common law recognizes a legal theory of unreasonable intrusion on the seclusion of another as a wrongful invasion of privacy.

The plaintiffs in this case argue that their equality and privacy rights were abridged by the School District’s policy allowing transgender students to use facilities consistent with their gender identity. The District undertook renovations of restroom and locker room facilities to increase individual privacy, and  has provided several single-user restrooms at the high school to accommodate any students who might feel uncomfortable using shared facilities to relieve themselves or change clothes.

U.S. District Judge Edward G. Smith issued a ruling last August denying a preliminary injunction that the plaintiffs requested to block the school’s policy while the case was litigated. Judge Smith found that the plaintiffs were unlikely to succeed on the merits of their claim, and that granting the injunction would cause more harm to transgender students than any benefit to the plaintiffs.

McKee began his analysis by discussing the plaintiffs’ constitutional privacy claim. He acknowledged past cases holding that “a person has a constitutionally protected privacy interest in his or her partially clothed body,” but, he wrote, “the constitutional right to privacy is not absolute.  It must be weighed against important competing governmental interests.  Only unjustified invasions of privacy by the government are actionable.”  In this case, District Judge Smith had found that the Boyertown School District’s policy served “a compelling state interest in not discriminating against transgender students,” and that the policy was “narrowly tailored to that interest.”  The 3rd Circuit panel agreed with this conclusion.

The court found that “transgender students face extraordinary social, psychological, and medical risks and the School District clearly had a compelling state interest in shielding them from discrimination.” The court described expert testimony about the “substantial clinical distress” students could suffer as a result of gender dysphoria, which “is particularly high among children and may intensify during puberty.  The Supreme Court has regularly held that the state has a compelling interest in protecting the physical and psychological well-being of minors,” McKee continued.  “When transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated – indeed, it can be life threatening.  This record clearly supports the District Court’s conclusion that the School District had a compelling state interest in protecting transgender students from discrimination.”

The court also observed that the challenged policy “fosters an environment of inclusivity, acceptance, and tolerance,” and specifically noted the amicus brief filed by the National Education Association, explaining how “these values serve an important educational function for both transgender and cisgender students.” Thus, the policy benefits not only transgender students but “it benefits all students by promoting acceptance.”

The court also pointed out that the District had gone out of its way to accommodate the privacy concerns of cisgender students by renovating the restrooms and locker rooms to enhance privacy and by making single-user restrooms available. “To the extent that the appellants’ claim for relief arises from the embarrassment and surprise they felt after seeing a transgender student in a particular space,” wrote McKee, “they are actually complaining about the implementation of the policy and the lack of pre-implementation communication.  That is an administrative issue, not a constitutional one.”

Thus, the court concluded, even if the policy is subject to “strict scrutiny” because it may involve a fundamental privacy right, it survives such scrutiny because of the compelling state interest involved and the way the District went about implementing it. The court observed that requiring the transgender students to use the single-sex facilities would not satisfy the state’s compelling interest, but would actually “significantly undermine it” since, as the 7th Circuit Court of Appeals stated last year in the case of transgender high school student Ash Whitaker, “a school district’s policy that required a transgender student to use single-user facilities ‘actually invited more scrutiny and attention from his peers.’”  McKee observed that “adopting the appellants’ position would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as a price of attending their public school.”

Furthermore, the court pointed out, the District’s policy “does not force any cisgender student to disrobe in the presence of any student – cisgender or transgender,” since the District has provided facilities “for any student who does not feel comfortable being in the confines of a communal restroom or locker room.” The renovation included “privacy stalls” and single-user facilities “so that any student who is uneasy undressing or using a restroom in the presence of others can take steps to avoid contact.”

But, said the court, it had never recognized an expansive constitutional right of privacy to the extent demanded by the plaintiffs in this case, and “no court has ever done so.” “School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected.” Even the Supreme Court has commented that “public school locker rooms are not notable for the privacy they afford.”  So the court was unpersuaded that the plaintiffs’ demand in this case had any support in constitutional privacy law.

The 3rd Circuit panel also endorsed Judge Smith’s conclusion that there was no Title IX violation here.  As Smith found, “the School District’s policy treated all students equally and therefore did not discriminate on the basis of sex.”  Judge Smith had also found that the factual allegations did not rise to the level of a “hostile environment” claim, and the 3rd Circuit panel agreed with him.

Judge McKee pointed out that the Title IX regulations upon which plaintiff was relying do not mandate that schools provide “separate privacy facilities for the sexes,” but rather state permissively that providing separate facilities for male and female students will not be considered a violation of Title IX provided the facilities are equal. Furthermore, in order to find a hostile environment, the court would need evidence of “sexual harassment that is so severe, pervasive, or objectively offensive and that ‘so undermines and detracts from the victims’ educational experience that he or she is effectively denied equal access to an institution’s resources and opportunities.’”  The plaintiffs’ allegations in this case came nowhere near meeting that standard.

Furthermore, the denial of equal access must be based on sex to violate Title IX. “The appellants have not provided any authority to suggest that a sex-neutral policy can give rise to a Title IX claim,” wrote Judge McKee.  “Instead, they simply hypothesize that ‘harassment’ that targets both sexes equally would violate Title IX; that is simply not the law.” He observed that the School District’s policy “allows all students to use bathrooms and locker rooms that align with their gender identity.  It does not discriminate based on sex, and therefore does not offend Title IX.”

The School District argued in response to the plaintiffs’ arguments that “barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX.” This was the argument accepted by the 7th Circuit in Ash Whitaker’s lawsuit, and Gavin Grimm’s continuing lawsuit against the Gloucester County, Virginia, school district under Title IX, also advancing this theory, recently survived a motion to dismiss in the federal district court there.

But, wrote McKee, “We need not decide that very different issue here,” although he characterized the 7th Circuit’s decision in Whitaker’s case as “very persuasive” and said, “The analysis there supports the District Court’s conclusion that appellants were not likely to succeed on the merits of their Title IX claim.”

The court also agreed with Judge Smith’s conclusion that separate state tort law claims asserted by the plaintiffs were unlikely to be successful, having found that “the mere presence of a transgender individual in a bathroom or locker room is not the type of conduct that would be highly offensive to a reasonable person,” which is the standard for the tort of “intrusion upon seclusion” in Pennsylvania. The court also approved Smith’s finding that denying the preliminary injunction would not cause irreparable harm to the plaintiffs, as the District has taken reasonable steps to protect their privacy.

Thus, the District’s trans-supportive policy will remain in effect while this case is litigated. The likely next step, if ADF does not slink away in defeat, would be to litigate motions for summary judgment if the parties agree that there is no need for a trial over disputed facts.  However, ADF is likely to sharply contest the facts, so it may be that an actual trial is needed to resolve this case.

Levin Legal Group of Huntingdon Valley, Pennsylvania, represents the School District, and the ACLU of Pennsylvania and the ACLU’s national LGBT Rights Project, with volunteer attorneys from the law firm Cozen O’Connor, represent the Pennsylvania Youth Congress Foundation, which intervened in the case to protect the interests of transgender students in the Boyertown District.