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Posts Tagged ‘First Amendment Freedom of Speech’

Federal District Judge Issues Injunction Against Tennessee Bathroom Warning-Sign Law

Posted on: July 11th, 2021 by Art Leonard No Comments

In May, Tennessee enacted a law intended to require operators of facilities with public restrooms who allow transgender people to use restrooms consistent with their gender identity to post a vividly colored large notice at the entrance to the restroom warning people about that policy.  The law went into effect on July 1.  On July 9, U.S. District Judge Aleta Trauger issued a preliminary injunction banning its enforcement while a lawsuit challenges its constitutionality in Bongo Productions v. Lawrence, 2021 U.S. Dist. LEXIS 128262 (M.D. Tenn., July 9, 2021).

Despite the lack of any reported incidents in Tennessee of problems due to transgender peoples’ public restroom usage, the Republican-controlled legislature, firmly enlisted in the current “red state” war against transgender people, passed H.B. 1182/S.B. 1224, which amends the state’s zoning laws regulating public property, to provide that any “public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.”

The law requires that the notice be posted “in a manner that is easily visible to a person entering the public restroom” and must be “at least eight inches wide and six inches tall” with a red and yellow color scheme designed to attract notice, and must use the precise wording specified in the statute, with its reference to “biological sex.”

The ACLU represents Bongo Productions, a Nashville company that operates several coffeehouses and restaurants, one of which has a particular LGBT clientele and which employs several transgender people, and Sanctuary Performing Arts, which is described as “a performing arts venue, community center and safe haven located in Chattanooga” which was “founded by member of the transgender community” and which intends to operate a full-service café and thus will come under the requirements of the new law.  Both Bongo and Sanctuary already provide multi-user restrooms.  Under the zoning laws long in effect prior to the present controversy, any multiple-user restrooms have to be labeled for men or for women by words or symbols.  Sanctuary has not labeled their restrooms by gender, but will be required to do so once they open the full-service café.

The owners of these facilities argued that the new law unconstitutionally compels them to post signs and communicate messages that they object to and that many of their customers will object to.  They presented expert testimony on the unscientific and ambiguous terminology of the statute, with its reference to “biological sex,” which was sufficient to persuade Judge Trauger, who devoted several paragraphs of her opinion to the testimony of a professor from Vanderbilt University Medical Center, Dr. Shayne Sebold Taylor, who explained the complexities of human sexuality.  What seemed to most impress Judge Trauger was the evidence that asking a transgender man who is presenting as a man to use the women’s room or a transgender woman who is presenting as a woman to use the men’s room was likely to cause quite a commotion, exactly the kind of social disruption that the proponents of the legislation claim to be trying to forestall by the prescribed notices.

In order to get a preliminary injunction, plaintiffs have to show that they have standing to sue, that the controversy is ripe for judicial resolution, that they have a reasonable probability of winning their case on the merits, that they will suffer irreparable injury if the act is enforced and the government will not suffer irreparable injury if enforcement is blocked while the case is being litigated.

Judge Trauger was convinced that all the criteria were met, despite disingenuous arguments by the lawyers for the public officials who are being sued, the fire marshalls in charge of Codes enforcement and local district attorneys who would be responsible for enforcement activity.

Her opinion is really a delight to read.  For example, on the issue of standing, they argued that nobody had brought an enforcement action against the plaintiffs, and one of the local D.A.’s even told the press that he didn’t intend to enforce the statute.  “This might be quite a different case if each of the defendant officials had given the court a meaningful reason to expect that he will not enforce the Act,” she wrote.  “The defendants, however, seek to have it both ways – to pretend that no one knows how the Act will be enforced, despite the fact that, of course, they know, because they will be among the ones doing the enforcing, and they are simply keeping their plans to themselves.”  In a footnote, she noted that a Republican legislator had sought an opinion from the state’s attorney general about whether D.A. Funk could be subjected to disciplinary action or removal “for his apparent disinclination to enforce the Act” after news reports appeared stating that he would not enforce it.

As to the merits of the case, since the statute compels business owners to post signs with which they disagree, this is a content-based regulation of speech subject to strict scrutiny, which means the statute is presumed unconstitutional unless the state has a compelling interest and the law is narrowly tailored to avoid unnecessarily abridging freedom of speech.

Judge Trauger wrote that “there is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose.  Although at least one key supporter of the Act in the General Assembly justified its requirements in relation to supposed risks of sexual assault and rape, there is (1) no evidence, in either the legislative record or the record in this case, that there is any problem of individuals’ abusing private bathroom policies intended to accommodate transgender and intersex individuals for that purpose and (2) no reason to think that, if such a problem existed, the mandated signs would address it.”

Even if there was a legitimate interest to “let patrons of a business know its bathroom policies – which the court finds doubtful – then that purpose could still be served by simply requiring businesses to disclose that information when asked or to keep it filed away somewhere accessible,” wrote the judge.  “There would certainly be no need to dictate the precise language required for the notice, the precise size and location of the disclosure, or that the sign have a red-and-yellow, warning-sign color scheme, as if to say: ‘Look Out: Dangerous Gender Expressions Ahead,’” concluding that there is “no plausible argument that this law would come anywhere close to surviving strict scrutiny.”

She also rejected the argument that the sign, which does not use the terms transgender or gender identity, was merely communicating non-controversial information.  “Courts, when considering First Amendment challenges, are permitted to exercise ordinary common sense to evaluate the content of a message in context to consider its full meaning, rather than simply robotically reading the message’s text for plausible deniability,” she wrote, asserting that “of course the signs required by the Act are statements about the nature of sex and gender and the role of transgender individuals in society.  Justice is blind, but the court does not have to play dumb.”

“On the current record,” wrote the judge, “the only way to argue that the message mandated by the Act is uncontroversial is to argue that the plaintiffs are simply lying about both the social realities they have observed and their own disagreement with the required message.  But the court sees no evidence whatsoever that the plaintiffs have failed to tell the truth about that or anything else.  To the contrary, the legislative history of the Act shows that it was devised, quite consciously and explicitly, as a direct response to social and political trends involving transgender people.  It is only now, in the context of litigation, that officials of the State suggest otherwise.”

The court concluded that the plaintiffs would suffer irreparable injury – a violation of their constitutional rights and potential harm to their businesses and the community they serve – if the public officials are free to enforce the statute.  “Because the plaintiffs’ evidence shows that the Act would be an invasion on private communities’ power to define themselves and their norms in accordance with their own consciences, the plaintiffs have more than carried their burden of showing that irreparable harm would occur absent an injunction.”  And, given the patent unconstitutionality of the statute, an injunction would not irreparably harm the state or damage the public interest.  “No legislature can enact a law it lacks the power to enact,” wrote Trager, “and the constraints on Tennessee’s power that come along with the U.S. Constitution were voluntarily assumed by the State of Tennessee by virtue of its entry into the federal system.”

She labelled the law a “brazen violation” of the concept that public officials cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  She ordered defendants to “take no actions to enforce House Bill 1182/Senate Bill 1224.

Those who followed the campaign for marriage equality some years ago may remember that it was Judge Trauger, who was appointed to the Court by President Bill Clinton, who issued an order in 2014 that the state must recognize the same-sex marriage performed out of state for plaintiffs in an important marriage equality case.  She correctly predicted in her opinion then that the Supreme Court would eventually recognize a constitutional right to marry for same-sex couples.

 

 

Alliance Defending Freedom Files Constitution Challenge to NYC Law Banning Conversion Therapy

Posted on: January 29th, 2019 by Art Leonard 3 Comments

Alliance Defending Freedom (ADF), the anti-gay Christian legal organization based in Scottsdale, Arizona, filed a lawsuit in U.S. District Court in Brooklyn on January 23, challenging the constitutionality of New York City’s Local Law 22 of 2018, which prohibits the practice of conversion therapy in the City. The law was a project of the City Council, which enacted it on November 30, 2017. It was returned to the Council unsigned by Mayor Bill De Blasio within thirty days, and became law without his approval on January 5, 2018.  The case is Schwartz v. The City of New York, Case 1:19-cv-00463 (N.Y. Dist. Ct., E.D. N.Y., filed Jan. 23, 2019).

The measure is probably the most broadly-sweeping legislative measure against conversion therapy to be enacted in the United States. State laws on the subject, including the one enacted in January in New York State, limit their bans to provision of such therapy to minors by licensed health care professionals, and designate the offense as professional misconduct that can subject the practitioner to discipline for unprofessional conduct. The City law, by contrast, applies to “any person” who provides such therapy for a fee to any individual, not just minors. The City law imposes civil penalties beginning with $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation, which can be imposed by the city’s Office of Administrative Trials and Hearings. Its enforcement has been assigned to the Department of Consumer Affairs.

For purposes of this law, “conversion therapy” is defined as “any services, offered or provided to consumers for a fee, that seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” The measure does not contain any express exemption for religious counselors or clergy, but presumably if they do not charge a fee for their services they are not subject to this law.

Legal challenges to the various state laws, of which there are now more than a dozen, have so far been unsuccessful, but it is not clear that the sweeping New York City law will benefit from some of the legal doctrines that states have successfully marshalled to defend their laws. Most importantly, the state laws fall comfortably within the traditional state role of regulating the provision of health care by licensed practitioners, and by being restricted to minors, they rest within the state’s traditional function of parens patriae, caring for the welfare of minors, which can mean at times defending minors from the well-meaning but harmful actions of their parents, such as refusing blood transfusions or medication for serious illnesses.

ADF is asking the court to issue a declaration that the law is unconstitutional and to issue an injunction against its enforcement by the City. The law does not authorize individuals to file suit against conversion therapy practitioners, but instead leaves enforcement to an administrative process, triggered by complaints to the Consumer Affairs Department.

ADF has found a seemingly sympathetic plaintiff, Dr. David Schwartz, a “counselor and psychotherapist practicing in New York City who has a general practice but who has regularly had, and currently has, patients who desire counseling that the Counseling Censorship Law prohibits.” The Complaint also describes him as a “licensed clinical social worker” who “resides and practices in Brooklyn.” When this writer first read the Complaint, he was alarmed to think that the New York City Council would title a measure “Counseling Censorship Law,” but upon retrieving a copy of the Local Law 22, saw that the title was an invention of ADF for the purpose of framing its 1st Amendment challenge, as the word “censorship” appears nowhere in the legislation, which does not have an official title.

According to the Complaint, Dr. Schwartz is an Orthodox Jew whose patients come mainly from the Chabad Lubavitch ultra-orthodox community. He avows that he provides counseling and psychotherapy attuned to the needs and desires of that community, and cites the late Lubavitcher Rabbi, Menachem Mendel Schneerson, as an authority supporting the practice of conversion therapy. The description of his practice does not mention child patients, stating: “Dr. Schwartz works only with willing patients – patients who voluntarily walk into his office and talk with him because they want and value his counsel. And Dr. Schwartz does nothing to or with his patients other than listen to them and talk with them.”

Schwartz fears that the City law will be used against him, and the Complaint focuses on the $10,000 civil penalty like a sword of Damocles hanging over his head. ADF was smart to avoid mentioning minors, since it filed this lawsuit during the time between the state legislature’s approval of its conversion therapy ban and its signing into law on January 25 by Governor Cuomo. If Schwartz practices on minors as a licensed psychologist, he will be violating the state law, possibly setting up another lawsuit by ADF.

ADF has positioned this case primarily as a challenge to government censorship of free speech and free exercise of religion. The Complaint insists that the only therapy Schwartz provides is “talk therapy,” eschewing the bizarre and cruel practices that were describe in a New Jersey court a few years go in a case brought by emotionally damaged patients of JONAH, a Jewish conversion therapy organization that was found in that case to be in violation of the New Jersey consumer protection law. ADF has crafted the Schwartz Complaint to distinguish this case from the JONAH case, which involved Jewish parents effectively forcing their teenage children to subject themselves to bizarre “therapeutic” procedures to “change” their sexual orientation.

By contrast, without ever indicating the age range of his patients, the Schwartz Complaint says that he “does not view it as the psychotherapist’s role to rebuke patients or to tell them the direction they ‘ought’ to go.” The Complaint describes a practice in which patients come to Schwartz “with a very wide range of issues. However,” it continues, “his practice regularly includes a few individuals who experience undesired same-sex attractions. In some cases, patients come to Dr. Schwartz seeking his assistance in pursuing their personal goal of reducing their same-sex attractions and developing their sense of sexual attraction to the opposite sex.” Schwartz insists that he “does not attempt to increase opposite-sex attraction or change same-sex attraction in patients who do not desire his assistance in that direction. In working with patients who desire to decrease same-sex attraction or increase their attraction to the opposite sex, Dr. Schwartz never promises that these goals will be achieved.”

The Complaint also insists that “Dr. Schwartz engages in no actions other than talking with the patient, and offering ways of thinking about themselves and others that may help them make progress towards the change they desire. Dr. Schwartz does not use electro-shock therapy, he does not recommend that patients view heterosexual pornography or that they subject themselves to painful or other adverse stimulations in response to undesired sexual thoughts. Dr. Schwartz simply listens to what his patients share with him, and talks to them.” The Complaint concedes that some patients do not achieve the goal, and “some have chosen to stop pursuing it,” but claims that Schwartz has had success with an unspecified number of patients who have “over time” experienced “changes” that “have enabled Dr. Schwartz’s patients to enter into heterosexual marriage that they desired.”

The Complaint recites the traditional arguments put forward by conversion therapy proponents, about how patients who are “strongly motivated to change” can achieve their goal. Interestingly, the Complaint refers repeatedly to “reducing” same-sex attraction without ever asserting that Schwartz claims to have “eliminated” such attraction in his patients. And, of course, proponents shy away from any sort of formal documentation, insisting that patient confidentiality precludes providing concrete examples. It also cites no published scientific authorities supporting the efficacy of talk therapy in changing sexual orientation.

Several paragraphs are devoted to statements attributed to Rabbi Schneerson relating to this subject, without any citation of published sources.

ADF’s legal theory here is that the city’s “Counseling Censorship Law” is a content-based regulation of speech that is “aiming to suppress the dissemination of ideas and information about human sexuality and the human capacity for change in this area” and “does not adopt the least restrictive means to pursue a compelling government interest,” arguing that the government “has no cognizable interest at all – let alone a compelling interest – in preventing citizens from hearing ideas that those citizens with to hear in a counseling relationship.” The Complaint argues that the law both prohibits and compels speech, in the sense that it “effectively requires Dr. Schwartz to tell the patient that no change is possible, which Dr. Schwartz does not believe to be true.”

The Complaint also claims that the law is “unduly vague” in violation of the Due Process Clause, picking apart various phrases and terms and suggesting that their ambiguity make it difficult for a practitioner to know what he can or cannot say to a patient. The Complaint also argues that the law violates the 1st Amendment rights of patients who want to receive talk therapy to change their sexual orientation. And, of course, it focuses at the end on the Free Exercise Clause, arguing that Schwartz “has a right to use his professional skills to assist patients to live in accordance with their shared religious faith, including the religious mandates of the Torah and the teachings of the Lubavitcher Rebbe and other respected Orthodox Jewish authorities based on the Torah. The Counseling Censorship Law purports to be justified, in its legislative history, by a supposed finding that ‘changing’ sexual orientation is impossible. The Lubavitcher Rebbe, whose teachings inform the core of Dr. Schwartz’s religious convictions, taught exactly the opposite.”

The Complaint argues that because the Council enacted the law knowing that “it was hostile to and targeting practices particularly associated with persons and communities adhering to traditional religious beliefs,” it is “not a neutral law of general applicability,” even though it nowhere mentions religion. This is an attempt to establish that Schwartz’s 1st Amendment claim is not governed by the U.S. Supreme Court’s holding, in Employment Division v. Smith, that individuals do not have a right based on their religious beliefs to be exempted from “neutral” laws of “general applicability.”

Interestingly, all the attorneys listed on the complaint are staff attorneys of ADF based in Scottsdale, Arizona. No member of the New York bar is listed, although a footnote indicates that one of the attorneys, Jeana J. Hallock, will be applying for pro hac vice admission (admission for purposes of this case only) to the bar in the U.S. District Court for the Eastern District of New York. The lead attorney signing the Complaint is Roger G. Brooks. The defendants are The City of New York and Lorelei Salas, the Commissioner of Consumer Affairs, whose department has issued regulations on enforcement of the law, and who is sued only in her official capacity. The New York City Law Department will defend the City and Commissioner Salas in the case, which is likely to attract amicus briefs on both sides of the case.