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Posts Tagged ‘Due Process Clause’

Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

Posted on: December 17th, 2020 by Art Leonard No Comments

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution.  Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted.  Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee.  Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy.  That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity.  Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity.  All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio.   State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition.  Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed.  Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14th Amendment, as well as their Free Speech rights under the 1st Amendment.  Having ruled in favor of the plaintiffs on their 14th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright.  The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record.  Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate.  The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification.  On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy.  Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing.  Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so.  What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances.  A person who gets a legal name change can get a new birth certificate showing their new legal name.  After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents.  The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case.  Furthermore, the state could attempt to appeal this ruling to the 6th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn.  Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

 

9th Circuit Rejects Parents & Students Lawsuit Against Trans-Friendly Oregon School District

Posted on: February 18th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity.  Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).

The decision was made by a panel comprised entirely of judges appointed by Democratic presidents.  Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.

The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room.  This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.

In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima.  Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”

The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex.  The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.

The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female.  The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”

In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.

The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima.  “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”  They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.

Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.

The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.

The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause.   They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.

Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.”  He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”

He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX.  Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation.  The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation.  These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.

The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents.  “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”

The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds.  The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs.  “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement.  The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.

The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students.  Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.

This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year.  However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step.  If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.

Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court.  In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.

The court received nine amicus briefs, none of which supported the plaintiffs’ position!  The American Civil Liberties was permitted to argue on behalf of the rights of transgender students.  All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights.  The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees.  An expanded panel of eleven would necessarily include some of Trump’s appointees.