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Washington Law Against Conversion Therapy Survives Constitutional Attack

Posted on: September 7th, 2022 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which included the first member of that bench appointed by President Donald Trump, unanimously ruled in Tingley v. Ferguson, 2022 WL 4076121 (September 6) that a circuit precedent from 2014, Pickup v. Brown, 740 F. 3d 1208, which rejected a constitutional challenge to California’s ban on conversion therapy for minors, is still a binding precedent in the 9th Circuit, thus affirming U.S. District Judge Robert J. Bryan’s decision (557 F.Supp.3d 1131 [W.D. Wash., 2021] to dismiss a challenge to a virtually identical law enacted in 2018 by the state of Washington.

The only real point of suspense in the case was what effect the panel might give to the U.S. Supreme Court’s decision in 2018 in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361.  Three-judge panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court.  The 2018 decision is usually referred to as the NIFLA case.

NIFLA operates a “pregnancy clinic” that counsels its clients not to resort to abortion.  It challenged a California statute that required licensed pregnancy clinics to inform clients that California law provides free or low-cost family planning services, including abortion.  NIFLA claimed that this requirement violated its free speech rights, compelling it to speak the state’s message rather than its own.  The 9th Circuit rejected that challenge, finding that the state could regulate “professional speech” as a distinct category of speech enjoying less protection under the 1st Amendment than other categories, such as political or artistic speech.

The Supreme Court reversed with an opinion by Justice Clarence Thomas, stating that “professional speech” was not less protected by the 1st Amendment than other forms of speech, and specifically criticizing decisions by the 3rd and 9th Circuits that had rejected free speech challenges to state laws designating performance of conversion therapy by licensed counselors as professional misconduct for which they could incur professional discipline.   Both of those cases had referred to “professional speech” as being less protected than other forms of speech.

In this new challenge to Washington’s law, licensed counselor Brian Tingley, who describes himself as a “Christian counselor” who attempts to get children to feel comfortable with their biological sex and to minimize homosexual attractions, sued with the representation of Alliance Defending Freedom, claiming that after the NIFLA decision, the 9th Circuit’s prior rulings on conversion therapy were no longer valid precedents.

District Judge Bryan disagreed, finding that the prior rulings had not depended solely on the “professional speech” theory.  Instead, the district court considered a regulation of health care practice to be concerned with conduct that incidentally involved speech, in which case the state could regulate the conduct to achieve an important governmental interest.  hat interest would be to protect minors from the adverse psychological and emotional effects of conversion therapy, which have been well-documented by numerous studies and led most professional associations in the health care field to condemn the practice.

The 9th Circuit panel agreed with Judge Bryan that the NIFLA opinion had not effectively overruled Pickup v. Brown or a subsequent case from California, Walsh v. Brown, that the Washington statute was virtually identical with the California statute that had been upheld, and that circuit precedent thus dictated that Tingley’s case be dismissed.

Judge Ronald M. Gould, writing for the panel, added a section to the opinion, speaking only for himself and Judge Kim McLane Wardlaw, identifying an “additional reason” for reaching the conclusion that the Washington law is constitutional.  “The Supreme Court has recognized that laws regulating categories of speech belonging to a ‘long tradition’ of restriction are subject to lesser scrutiny.”  Looking back at the NIFLA ruling, he noted that Justice Thomas wrote that in the NIFLA case there was not “persuasive evidence of a long (if hereto unrecognized) tradition” of exempting speech by professionals from First Amendment protection.  However, Gould pointed out, there was a long tradition of the states regulating licensed health care practice.

“There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders,” he wrote, citing U.S. Supreme Court cases from 1889 and 1898 to make his point.  “And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs.”  He also noted that the Supreme Court had in the past “relied upon the positions of the professional organizations Tingley criticizes, even when those positions have changed over time.”

Gould commented that “the evidence presented shows some difference in opinion about the efficacy and harm of conversion therapy, but the ‘preponderating opinion’ in the medical communicate is against its use.”

“That doctors prescribed whiskey in 1922, and thought of homosexuality as a disease in 1962, does not mean that we stop trusting the consensus of the medical community in 2022 or allow the individual desires of patients to overcome the government’s power to regulate medical treatments.”  And he pointed out that invalidating the conversion therapy ban because the “therapy” consisted of speech “would endanger other regulations on the practice of medicine where speech is part of the treatment.”  For example, he noted a Washington statute that prohibits doctors from promoting “for personal gain any unnecessary inefficacious drug, device, treatment, procedure or service.”  Such promotion would normally be done through speech.  Other sections of the law would subject to discipline the offering “to cure or treat diseases by a secret method,” and prohibit all advertising by health care professionals that is “false, fraudulent, or misleading.”

He also noted that the law was narrowly focused on licensed professionals, exempted unlicensed religious counselors, and clearly did not apply outside the confines of professional-client treatment relationships.  Counselors are free to state their views about conversion therapy, both to their clients and publicly, but are just forbidden to provide conversion therapy to clients.

As to Tingley’s separate claim that the law violates his free exercise of religion, the court concluded that  this was a religiously-neutral law of general applicability, and thus under existing Supreme Court precedent Tingley could not claim an exemption from complying based on his religious beliefs.   The court also rejected Tingley’s argument that the law was unconstitutionally vague, finding that past decisions had rejected the argument that “sexual orientation” and “gender identity” are terms whose meaning is uncertain.  “’Sexual orientation’ and ‘gender identity’ have common meanings that are clear to a reasonable person,” wrote Judge Gould, “let alone a licensed mental health provider.”

Judge Mark Bennett, the Trump appointee on the panel, joined the majority opinion, but only to the extent that it found the question of constitutionality to be governed by the 9th Circuit precedents.  “Respectfully,” he wrote, “I believe that we should not hypothesize with dicta when our conclusion is commanded by binding precedent.”  Judges Gould and Wardlaw were appointed by President Bill Clinton.

Numerous amicus briefs were filed in this case, reflecting the heavy investment by the faith-based community in attempting to protect the practice of conversion therapy, especially by religiously-motivated licensed counselors, and the commitment by LGBTQ and other civil liberties groups to protect minors from a dangerous and exploitative practice.

Alliance Defending Freedom is likely to seek en banc review and, ultimately, to asking the Supreme Court to take up this case.  Judge Gould recognized in his opinion for the court that this ruling opens up a split with a recent opinion by the 11th Circuit, Otto v. Boca Raton, 981 F.3d 854 (2020), which struck down a municipal conversion therapy ban on the theory that conversion therapy that is limited to speech enjoys full 1st Amendment protection, rejecting the argument that it was a regulation of professional conduct only incidentally burdening speech.  The 11th Circuit took a different view of the impact of the Supreme Court’s NIFLA ruling, so it is possible that this case will provide ADF with the vehicle it is seeking to get the issue back before the Supreme Court.

Federal Appeals Court Says People with Gender Dysphoria are Protected Against Discrimination by Federal Disability Statutes

Posted on: August 17th, 2022 by Art Leonard No Comments

A three-judge panel of the Richmond, Virginia, based U.S. Court of Appeals for the 4th Circuit ruled on August 16 that people with a gender dysphoria diagnosis are considered to have a “disability” that entitles them to protection against discrimination under two federal statutes, the Americans with Disabilities Act (ADA) and the Vocational Rehabilitation Act.  The 2-1 decision is the first in which a federal appeals court has found such individuals to be entitled to protection under those two laws.  Williams v. Kincaid, 2022 WL 3364824, 2022 U.S. App. LEXIS 22728.

The Rehabilitation Act, passed in 1973, forbids discrimination in federal programs, by large federal contractors, or in programs or activities that receive federal financial assistance, against qualified individuals with a disability.  The ADA, passed in 1990, forbids discrimination by employers, by public entities (including public transportation), by public accommodations and commercial facilities, or in telecommunications, against qualified individuals with a disability.  Both statutes cover physical and mental disabilities.

Transgender people generally won protection against discrimination by employers under Title VII of the Civil Rights Act of 1964 when the Supreme Court ruled in Bostock v. Clayton County (2020) that the ban on discrimination because of sex in Title VII must be interpreted to include discrimination because of transgender status.  However, that ruling applies only to employment by entities with at least fifteen employees.  When Congress amended the civil rights bill in 1964 to add “sex” to the list of prohibited grounds for discrimination, it did not also add “sex” to other provisions of the civil rights bill – most significantly the public accommodations provision – so until the 4th Circuit’s August 16 ruling, there was no federal protection against discrimination in public accommodations and services for transgender people.

When the ADA was pending in Congress, Senators Jesse Helms and William Armstrong, outspoken opponents of LGBT rights, criticized the measure as a “gay rights bill,” arguing that “homosexuals,” “transvestites” and “transsexuals” could claim that they had a mental disability and sue for discrimination under the proposed ADA.  To prevent protection for people whom they disapproved, they successfully proposed an amendment that excludes from the definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders” as well as “compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.”  Federal trial courts, until relatively recently, have interpreted this provision to preclude protection under the ADA or the Rehabilitation Act for transgender individuals.

In Kesha Williams v. Stacey Kincaid, the August 16 ruling, the trial court relied on the ADA exclusion language to dismiss claims by a transgender former inmate of a Virginia jail that she had been subjected to unlawful disability discrimination while incarcerated, because of her gender dysphoria.  The trial judge, Claude M. Hilton of the Eastern District of Virginia, concluded that Congress intended to withhold protection from transgender people, which would include those suffering from gender dysphoria.  He also rejected gross negligence claims against two of the three named defendants, the sheriff in charge of the jail and two jail employees.

Two of the three circuit judges disagreed with Judge Hilton.  Pointing to the Bostock decision, in which Justice Neil Gorsuch wrote that statutes should be interpreted in light of the common meaning of their language at the time the legislation was enacted, Circuit Judge Diana Gribbon Motz observed that the term “gender dysphoria” was not in use in 1990, and that the American Psychiatric Association, in the 2013 edition of its Diagnostic and Statistical Manual (DSM-5), had removed “gender identity disorders” as a listed diagnostic term, and had adopted the new term of “gender dysphoria.”  The court reasoned that this change was not just a case of renaming the same thing, but rather of recognizing a new “independent diagnosis” for a specific condition.  This resulted from “advances in medical understanding.”

“The very fact of revision suggests a meaningful difference,” wrote the judge, “and the contrast between the definitions of the two terms – gender identity disorder and gender dysphoria – confirms that these revisions are not just semantic.”  Consequently, a majority of the panel ruled that a person with gender dysphoria – which the defendants did not dispute was an actual disability that was otherwise within the statutory definition – did not come within the exclusionary provision.  As an alternative argument, they accepted Williams’ reliance on some scientific articles suggesting that gender identity has a physical basis and thus might be described as a gender identity disorder that results does from a physical impairment.

The court also pointed out that a 2008 amendment to the ADA instructed that “courts construe the ADA in favor of maximum protection for those with disabilities, (so) we could not adopt an unnecessarily restrictive reading of the ADA.”  And, added Judge Motz, reversing the district court’s dismissal based on this interpretation of the statute also avoided the need to rule on Williams’ contention that she had been denied Equal Protection of the law in violation of the 14th Amendment.  Courts generally will consider whether ruling against the plaintiff would raise constitutional issues in determining how to interpret a statute.

The court also rejected District Judge Hilton’s conclusion that claims against two prison employees should be dismissed on statute of limitation grounds because they were only named in an amended complaint that was filed after the two-year statute of limitations had run.  The court also reversed Judge Hilton’s dismissal of a gross negligence claim, finding, contrary to the trial judge, that Williams’ factual allegations were sufficient to meet the requirements of Virginia law for such a claim against the sheriff and one of the jail employees.

Dissenting, Judge A. Marvin Quattlebaum focused on similarities in the definitions of “gender identity disorders” and “gender identity” and argued that even if Williams was correct about “changes in understanding” by the medical profession since 1990, “linguistic drift cannot alter the meaning of words in the ACA when it was enacted.”  He insisted that as of 1990, “the meaning of gender identity disorders included gender dysphoria as alleged by Williams.”  He also disagreed with the majority of the panel on the gross negligence issue as it pertained to Sheriff Stacey Kincaid, the lead defendant.

The 4th Circuit panel decision establishes a precedent for the federal courts in Maryland, Virginia, and North and South Carolina.  However, it is possible that Judge Quattlebaum will call for a vote by the full circuit bench on whether to rehear the case “en banc,” or that the defendants could move for such a vote. A vote by a majority of the fourteen active judges of the Circuit court to grant en banc review would vacate the panel decision and require reconsideration by the full 4th Circuit bench.  (There is one vacancy that Biden has not yet filled.)  At present, eight of the fourteen judges are Democratic appointees, including Judge Motz (Bill Clinton) and Judge Pamela Harris (Barack Obama), the other member of the majority. Dissenting Judge Quattlebaum was appointed by Donald Trump.

The defendants could also apply directly to the Supreme Court for review of this decision.  The Supreme Court usually does not grant review unless there is a split among circuit courts about the legal issues in the case.  The 4th Circuit is rule on the question whether people with gender dysphoria are protected under the ADA and the Rehabilitation Act, so there is no circuit split.

Federal Court Narrows Discovery in Trans Military Case, but Rejects Government’s Broad Privilege Claims

Posted on: September 20th, 2019 by Art Leonard No Comments

U.S. District Judge Colleen Kollar-Kotelly, ruling in the first of four pending lawsuits challenging the current version of the military policy on transgender service, issued a wide-ranging ruling on September 13 attempting to settle some of the remaining problems in deciding what information the plaintiffs are entitled to obtain through discovery as the case continues. The case, renamed since President Trump was removed as a defendant and James Mattis quit as Defense Secretary, is now called Jane Doe 2 v. Mark T. Esper, 2019 WL 4394842, 2019 U.S. Dist. LEXIS 156803 (D.D.C., September 13, 2019)

The decision makes clear that the court has rejected the government’s argument that the so-called “Mattis Plan,” implemented in April 2019 after the Supreme Court voted to stay the preliminary injunctions that had been issued by the district courts, is entitled to virtually total deference from the court, thus precluding any discovery into how the Mattis Plan was put together, allegedly by a task force of experts convened by Defense Secretary James Mattis in response to the president’s request for a plan to implement the total ban on transgender service that he announced by tweet in July 2017.

When Trump came into office, transgender people were serving openly in the military as a result of a policy announced at the end of June 2016 by President Obama’s Defense Secretary, Ashton Carter.  The Carter policy lifted the existing ban on open transgender military service, but delayed lifting the ban on enlistment of transgender people for one year.  The first move by the Trump Administration concerning this policy was an announcement by Secretary Mattis at the end of June 2017 that he would not lift the enlistment ban until January 2018 in order to make sure that all necessary policies were in place to evaluate transgender applicants for enlistment.

A few weeks later, catching just about everybody by surprise, President Trump tweeted his announcement of a total ban on transgender people serving.  This was followedby a White House memorandum in August 2017, delaying enlistment of transgender people indefinitely, but allowing those already in the military to continue serving until March 2018 while Secretary Mattis came up with an implementation plan to recommend to the president.

Starting in August 2017 and continuing into the fall, four law suits were filed in federal district courts around the country challenging the constitutionality of the ban as announced by the President.  Federal district judges issued preliminary injunctions in all four lawsuits while denying the government’s motion to dismiss them, setting the stage for discovery to begin.  Discovery is the phase of a lawsuit during which the parties can request information, testimony and documents from each other in order to build a factual record for the decision of the case, and under federal discovery rules, anything that may be relevant to decide the case may be discoverable, subject to privileges that parties may assert.

In February 2018, Secretary Mattis released a report, purportedly compiled by a task force of senior military personnel and experts whom Mattis did not identify, discussing transgender military service and recommending a policy that differed in many respects from the absolute ban Trump had announced.  Under this proposed policy, the enlistment ban would be relaxed for transgender people who have not been diagnosed with gender dysphoria and are willing to serve in their gender as identified at birth.  The policy would allow transgender people who were serving to continue doing so.  Those who were transitioning as of the date the policy was implemented would be allowed to complete their transition and serve in their desired gender.  Otherwise, transgender personnel would have to serve in their gender as identified at birth, and would be separated from the service if they were diagnosed with gender dysphoria.  Nobody would be allowed to initiate transition while in the military once this policy was implemented.  There was no guarantee that transgender personnel would be allowed re-enlist at the end of their term of enlistment unless they met the same standards as a new applicant.  In short, the proposed policy would allow some transgender people to serve, but not all who were otherwise qualified, and would place certain restrictions on those who were allowed to continue serving.

Trump’s response to the recommendation was to revoke his prior policy announcements and to authorize Mattis to implement what became known as the Mattis Plan.  However, all the preliminary injunctions were still in place, so the government concentrated on getting the injunctions dissolved or withdrawn and getting the district judges to dismiss the cases on the ground that the policy they were attacking no longer existed.  The district judges resisted this move, some appeals were taken to the courts of appeals, and ultimately the Mattis Plan was implemented more than a year after it was proposed to the president, when the Supreme Court cut through the procedural difficulties and ruled, without a written opinion, that the Mattis Plan could go into effect while the lawsuits continued.

The focus of the lawsuits now switched to challenge the constitutionality of the Mattis Plan, and the parties went back to battling about discovery after it was clear that the district courts would not dismiss these lawsuits merely because one plan had been substituted for another.  Although some transgender people can serve under the Mattis Plan, the Plan still discriminates both against transgender people who have been diagnosed with gender dysphoria and against those who have not by requiring them to forego obtaining a diagnosis and transitioning if they want to serve.

One of the issues for Judge Kollar-Kotelly was deciding whether the government was correct to argue that because the Mattis Plan resulted from a Task Force study and recommendation process, it was entitled to standard military deference, under which courts disclaim the power to second-guess the personnel policies the military adopts.  The government focused particularly on a concurring opinion in the D.C. Circuit panel opinion that had quashed the preliminary injunction in this case, which arguably supported the view that plaintiffs were not entitled to discovery of documents and testimony related to the “deliberative process” by which the Mattis Plan was devised.

The judge responded that this was the central issue of the case: whether the Mattis Plan is entitled to standard military deference.  She found that the concurring judge, Stephen Williams, was alone in his view, as the other two members of the D.C. Circuit panel, faithful to Supreme Court precedents, had not opposed discovery, find that the deference question turned on whether the Mattis Plan is “the result of reasoned decision-making” that relates to military readiness concerns.  If, as the plaintiffs suspect and have argued all along, Trump’s motivation in banning transgender military service was motivated by politics, not by any evidence that the Ashton Carter policy had harmed the military by allowing unqualified people to serve, it would not be the result of “reasoned decision-making “and thus not entitled to deference.

Agreeing with the plaintiffs, Judge Kollar-Kotelly wrote that she could not decide the appropriate level of deference (or non-deference) without access to information about how the Mattis Plan was devised.  Thus discovery should continue ,focused on that.  However, she rejected the plaintiffs’ argument that they should be allowed to conduct discovery on Mattis’s initial decision to delay enlistments for six months, or on the process by which Trump formulated the July 2017 total ban announced in his tweet and elaborated in the White House’s August 2017 memorandum. Those, she found, are no longer relevant when the focus of the lawsuit has shifted to the constitutionality of the Mattis Plan.

As to that, however, the judge ruled that the government’s attempt to shield access to relevant information under the “deliberative process privilege” was not applicable to this case.  Just as the current state of the record is inadequate to determine the level of deference, discovery of the deliberative process by which the Mattis Plan was devised is necessary to determine whether it is the “result of reasoned decision-making.”

The judge reviewed a checklist of factors created by the D.C. Circuit Court of Appeals in earlier cases to determine whether the deliberative process privilege should be set aside in a particular case, and found that the plaintiffs’ requests checked all the necessary boxes.  The information is essential to decide the case, it is not available elsewhere than from the government, and the court can use various procedures to ensure that information that needs to be kept confidential can be protected from general exposure through limitations on who can see it, known as protective orders.  Furthermore, the parties can apply to the court for determination of whether any particular document need not be disclosed in discovery on grounds of relevance.

The government was particularly reluctant to comply with the plaintiffs’ request for “raw data and personnel files.”  The plaintiffs sought this in order to determine whether the factual claims made in the Task Force Report are based on documented facts, especially the claims in the Report that allowing persons who have been diagnosed with gender dysphoria to serve will be harmful to military readiness because of limitations on deployment during transitioning and geographical limitations on deployment due to ongoing medical issues after transition.  Critics have pointed out that the Report seems to be based more on the kind of propaganda emanating from anti-transgender groups than on a realistic appraisal of the experience in the military since Secretary Carter lifted the former ban effective July 1, 2016.  Since transgender people in various stages of transition have been serving openly for a few years, there are medical and performance records that could be examined to provide such information, but the government has been refusing to disclose it, claiming both that it raises privacy concerns and that disclosure is unnecessary because the Mattis Plan is entitled to deference as a military policy.

The judge found that it should be possible for these records to be discovered by redacting individually identifying information and imposing limitations on who can see the information and how it can be used.  Thus, the privacy concerns raised by the government should not be an impediment.  And this information, once again, is very relevant to the question whether the statements about the service qualifications of transgender people are based on biased opinions rather than facts, thus discrediting the claim that the policy is the result of reasoned decision-making.

The Trump Administration’s strategy in this, as in many other ongoing lawsuits concerning controversial policy decisions, has been to fight against discovery at every stage and to appeal every ruling adverse to them, including trying to “jump over” the courts of appeals to get the Supreme Court to intervene on the government’s behalf, now that Trump has succeeded in fortifying the conservative majority on the Court with the additions of Justices Gorsuch and Kavanaugh.  It would not be surprising if the government seeks to appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit once again to put off (perhaps permanently) the day when they will have to give up the identities of the Mattis Task Force members and open the books on how this policy – obviously political in its conception and implementation – was conceived.

Of course, if the White House changes hands in January 2021, a Democrat president could reverse the ban in any of its forms with a quick Executive Order restoring Secretary Carter’s policy from 2016.  As the four lawsuits continue to be bogged down in discovery disputes, that may be the way this story eventually ends.  If Trump is re-elected, the story continues to drag out while the Mattis Plan stays in place.

The plaintiffs are represented by a growing army of volunteer big firm attorneys and public interest lawyers from GLAD (GLBTQ Legal Advocates & Defenders) and the National Center for Lesbian Rights.

9th Circuit Panel Orders Gender Confirmation Surgery for Transgender Inmate in Idaho

Posted on: August 28th, 2019 by Art Leonard No Comments

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8th Amendment rights of Adree Edmo, a transgender inmate, when it denied her gender confirmation surgery.  The court’s opinion, issued collectively by the three judges as “per curiam,” provides such an extensive discussion of the medical and legal issues that it could serve as a textbook for other courts.

The ruling is a particularly big deal because it is the first such wide-ranging appellate ruling in the nation’s largest circuit by population, as the 9th Circuit includes California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana.  Other circuit courts are divided over whether transgender inmates may have a right to complete their transition surgically while incarcerated.

The three judges on the panel, Circuit Judges M. Margaret McKeown and Ronald M. Gould, and U.S. District Judge Robert S. Lasnik of the Western District of Washington, were all appointed to the court in the late 1990s by President Bill Clinton.

The court’s ruling affirmed a May 2019 order by U.S. District Judge B. Lynn Winmill, also a Clinton appointee, who issued the ruling after an extensive trial process with several expert witnesses and numerous amicus briefs.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since age 5 or 6, according to the hearing record.  Edmo pled guilty in 2012 to a charge of sexual abuse of a 15-year-old boy at a house party.  At that time, Edmo was 21.  It was about that time that she resolved an internal struggle about gender identity and began living as a woman.  By the time of the trial court’s evidentiary hearing in this case, Edmo was 30, and due to be released from prison in 2021.

Edmo first learned the term “gender dysphoria” and what was involved in gender transition around the time of her incarceration.  Shortly after coming into the custody of the Idaho Department of Corrections, she was diagnosed with “gender identity disorder,” the term that was used in the prior edition of the Diagnostic and Statistical Manual (DSM), the “Bible” for the psychiatric profession.  The latest edition of DSM changes the terminology to “gender dysphoria,” as being a more accurate characterization in the consensus view of the profession.  The diagnosing doctor was Dr. Scott Eliason, employed by Corizon, Inc., the medical contractor for the Idaho prison system.  A psychologist employed by Corizon, Dr. Claudia Lake, confirmed the diagnosis.

Edmo has changed her legal name and obtained a new birth certificate designating her as “female” to affirm her gender identity.  She has consistently tried to present as female throughout her incarceration, even though this has resulted in disciplinary measures as she continues to be housed in a male prison.  There is no dispute among the parties to this case, which include Corizon and the  Idaho Corrections Department, that Edmo suffers from gender dysphoria, which causes her to feel “depressed,” “disgusting,” “tormented” and “hopeless,” and this has moved her twice to attempt self-castration.

Although hormone therapy has helped to ameliorate the effects of her gender dysphoria, it has not completely alleviated the condition, and much of her distress focuses on her male genitalia, the removal of which is her dedicated goal, as reflected in her castration attempts.   The expert testimony indicated that removal of the male genitalia would make it possible to reduce the level of her hormone therapy, as her body would no longer be producing the male hormone testosterone, and reduced hormone therapy would reduce side effects and be beneficial to her long-term health.

The main cause of dispute is that the Corizon doctors, under direction of the Idaho Corrections Department, have imposed standards going beyond those specified by the World Professional Association for Transgender Health (WPATH) for determining when an individual with gender dysphoria is eligible for surgery.  The state’s case here relies mainly on Dr. Eliason’s testimony and the standards he sought to impose.  Judge Winmill concluded that those standards failed in certain respects to conform to the medical consensus as represented by the WPATH standards and that, as to one of Eliason’s standards, his diagnosis fails to give adequate weight to Edmo’s self-castration attempts.

Experts testifying at the district court hearing included two doctors extremely experienced with treating gender dysphoria, both of whom are active as WPATH members, who offered testimony that convinced Winmill that gender confirmation surgery is necessary for Edmo.  Winmill issued an injunction after the hearing ordering the state to provide the surgical procedure for Edmo, but the injunction was stayed while the state appealed to the 9th Circuit on an expedited schedule.

The appellate panel rejected all of the state’s objections to Judge Winmill’s ruling.  Under the Supreme Court’s 8th Amendment jurisprudence, a prison system will be found to violate the 8th Amendment if it displays deliberate indifference to an inmate’s serious medical condition by failing to provide necessary treatment.  A large amount of judgment based on the facts of the individual case goes into determining whether the prison’s failure to provide a particular procedure to a particular inmate violates the Constitution, and some courts have upheld refusal to provide surgery when medical experts disagree about the appropriate treatment for a prisoner’s particular medical condition, finding that a disagreement among experts bars the conclusion that the prison is being deliberately indifferent to the inmate’s medical needs.  The state, citing its own experts, pushed for this conclusion, but the court identified the state’s experts as underqualified and their views as “outliers” from the professional consensus.

In backing up Judge Winmill’s conclusion, the 9th Circuit panel made clear that they were ruling based on the facts of this individual case, and not endorsing a general rule that transgender inmates are always entitled to surgery.  They found that the evidence shows that not all people who identify as transgender suffer from gender dysphoria, and that the degree of intensity of gender dysphoria can range from mild to severe.  Many transgender people do not desire surgery even though they have a gender dysphoria diagnosis, and sometimes other medical conditions cut against performing the surgery for health and safety reasons.

A major point of contention in this case is the specification in the WPATH standards that surgery should not be performed until the individual has experienced living consistent with their gender identity for at least a year.  Dr. Eliason’s interpretation of this requirement focused on living in a non-institutional setting for at least a year, considering the prison setting as “artificial” and not like the setting the inmate would encounter upon release from prison.  According to this view, the only inmates entitled to surgery would be those who had lived consistent with their gender identity for at least a year before they were incarcerated.  This would categorically rule out surgery for those who were first diagnosed with gender dysphoria after incarceration, such as Edmo, even though identified as female for many years before the crime for which she pled guilty.

The experts who testified on her behalf persuasively argued that it was possible for a transgender inmate to fulfill that requirement in prison, and pointed out that the WPATH standards state that the experiential year can take place while incarcerated.  Also, the court noted that Edmo’s persistent attempts to present as female, even in the face of hostility from corrections personnel, since 2012 would more than fulfill this requirement, since there was medical documentation that she has been presented as female since 2012.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with a ruling earlier this year by the U.S. Court of Appeals for the 5th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8th Amendment standards.  The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1st Circuit, which held that the Massachusetts prison system did not have to provide surgery for Michelle Kosilek, a transgender inmate who had been sentenced to life without parole upon conviction of murdering her wife while presenting as male.  Kosilek went through years of litigation just to get hormone therapy, before then litigating for years for surgery. The 1st Circuit accepted the state’s testimony that hormone therapy was sufficient in her case and that in light of the nature of her offense, there would be enormous security problems in the prison system if she were to have surgery and then be transferred to a female prison.

The 4th Circuit has also ruled that a categorical rule against providing surgery for transgender inmates is unconstitutional, but that case did not involve an actual order that a prison system provide the surgery to a particular inmate.  This new 9th Circuit ruling sharpens the split with the 5th and 1st Circuits, raising the odds that a petition to the Supreme Court might be granted.  So far, the only Supreme Court ruling on the merits in a transgender case dates back several decades, when the Court ruled in a case involving a transgender inmate who was severely assaulted in prison that prison officials might be held to violate the 8th Amendment by failing to protect transgender inmates from serious injury while incarcerated.

In the course of its ruling, the court determined that Corizon, the health care contractor for the Idaho prisons, was not liable under the 8th Amendment.  Liability was focused on the Idaho Corrections Department itself and Dr. Eliason.

The court emphasized the urgency of providing surgery to Edmo, clearly signaling that it would not be receptive to requests for delay pending further appeal by the state.  As a practical matter, if the state cannot obtain an emergency stay, the surgery will go forward unless Idaho decides to do what California did in an earlier case where the 9th Circuit had refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery!  Anticipating that this kind of ruling might come from the 9th Circuit in that earlier case, California revised its rules to drop its categorical ban on providing gender confirmation surgery to inmates, and has already provided the procedure to one inmate, the first known instance in which a state has actually provided the surgery.

Edmo is represented by a team of attorneys from California and Idaho law firms as well as the National Center for Lesbian Rights.  Attorneys from a wide variety of civil rights organizations represented the various amicus parties.  The struggle to obtain this decision and opinion was a very large team effort, resulting in an array of briefs that can be usefully deployed in future litigation in other circuits.

5th Circuit Panel Rules Denial of Gender Confirmation Surgery for Transgender Inmate Does Not Violate 8th Amendment

Posted on: April 1st, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled by a vote of 2-1 on March 29 that the state of Texas did not violate the 8th Amendment right against cruel or unusual punishment by denying gender confirmation surgery to transgender inmate Vanessa Lynn Gibson.  Gibson v. Collier, 2019 WL 1417271, 2019 U.S. App. LEXIS 9397.  The dissent argued that the substantive legal question was not properly before the court.  The majority took the position that a state may categorically refuse to provide gender confirmation surgery (or, as they labelled it, “sex reassignment surgery”) as a treatment for gender dysphoria, regardless of the needs of the individual inmate.

The opinion for the panel was written by James C. Ho, who was nominated by President Donald Trump to fill one of the long-standing vacancies on the 5th Circuit that was preserved by Senate Majority Leader Mitch McConnell’s determined effort to block President Obama from filling circuit court vacancies that opened up during his second term.  The retirement of an active judge created this vacancy in 2013.  Upon confirmation by the Senate, James Ho joined the court on January 4, 2018.  He was previously Solicitor General of Texas, and active in the Federalist Society.  Joining Ho’s opinion was Circuit Judge Jerry Edwin Smith, who was appointed to the court by President Ronald Reagan.  The dissenter was Senior Circuit Judge Rhesa Hawkins Barksdale, who was appointed by President George H. W. Bush.  (President Trump has appointed five out of the sixteen current active judges on the circuit court, among whom two were appointed by President Bill Clinton and three by President Barack Obama.  There is on vacancy pending on the 5th Circuit.)

Judge Ho’s opinion rests on two simple propositions.  Under the 8th Amendment’s text and case law concerning the rights of inmates to medical treatment, denying an inmate a treatment that is controversial within the medical profession and which has rarely if ever been provided to inmates cannot be held to violate the Amendment.  For one thing, he argued, denying sex reassignment surgery is not rare.  Indeed, it is a matter of course, since by his account only once in the nation’s history has any state prison system provided sex reassignment surgery to an inmate, when California recently settled a lawsuit by agreeing to provide sex reassignment surgery to the plaintiff.  Thus, denying such a procedure is not “rare,” and the 8th Amendment only prohibits punishments that are cruel and unusual.  On the other point, he wrote, the case law supports the proposition that the state only violates the 8th Amendment if it exhibits deliberate indifference to a serious medical condition, a demanding test that requires that the treatment requested by the inmate be one as to which there is widespread agreement among health care providers about its necessity.  Thus, if there is significant disagreement among medical authorities about whether a particular treatment is necessary, it doesn’t violate the Constitution for the state to refuse to provide it.

The opinion sets out only the bare bones of factual allegations by plaintiff Scott Lynn Gibson (a/k/a Vanessa Lynn Gibson).  The court uses male pronouns to refer to Gibson, claiming that Gibson did not object, although the litigation papers Gibson prepared while pro se use feminine pronouns. Gibson is an inmate at the Gatesville facility of the Texas Department of Criminal Justice (TDCJ).  Gibson was incarcerated on conviction of two counts of aggravated robbery, and committed additional crimes in prison of aggravated assault, possession of a deadly weapon, and murder.  Upon further conviction, Gibson is sentenced to serve through May 2013, eligible for consideration for parole in April 2021.  Identified male at birth, Gibson has identified and lived as female since age 15, but was not diagnosed as having gender dysphoria at the time of incarceration.

The court accepts that Gibson has gender dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association, is depressed, and has attempted self-castration and suicide, although according to the record is not presently considered suicidal (although learning of this decision may well affect that).  It was not until after a suicide attempt that Gibson obtained a formal diagnosis.  Gibson has been receiving counseling and hormone therapy, but insists that surgery is necessary to ameliorate her condition. Despite living as a woman, Gibson is incarcerated per the state’s policy in a men’s prison. The state’s formal policy provides that transgender inmates be “evaluated by appropriate medical and mental health professionals and have their treatment determined on a case by case basis,” reflecting the “current, accepted standards of care.”  The policy does not mention surgery, but doctors have repeatedly denied Gibson’s request for surgery because the TDCJ formal policy does not “designate [sex reassignment surgery] as part of the treatment protocol for Gender Identity Disorder.”

Gibson represented herself in this lawsuit until it reached the level of the Court of Appeals, at which point the court appointed counsel to represent Gibson on appeal: Stephen Louis Braga, I, of the University of Virginia Law School’s Appellate Litigation Clinic. This appointment is apparently only for the appeal; had the case been remanded, Gibson would presumably be pro se again.  From the court’s account of oral argument, referred to several times in the opinion, it appears that Braga made concessions at oral argument that supported the court’s ultimate conclusion because of how Judge Ho dealt with the facts, but it is clear that the court was most heavily influenced by a decision of the U.S. Court of Appeals for the 1st Circuit, Kosilek v. Spencer, 774 F. 3d 63 (1st Circuit, en banc, 2014), in which the full 1st Circuit bench reversed a three-judge panel’s 2-1 decision and held that a transgender inmate serving a sentence of life without parole was not entitled to receive sex reassignment surgery.  Most importantly, Judge Ho referred repeatedly to the 1st Circuit’s summary of expert medical testimony offered in that case, filling an important gap in this case’s record, where there is no direct expert testimony because the district court rejected Gibson’s claims outright.  Judge Barksdale’s dissent objects to heavy reliance on the Kosilek ruling in this way.

Prison inmates are entirely dependent on the corrections system for their health care, for obvious reasons.  The Supreme Court and lower federal courts have found that prisoners are entitled to “necessary treatment for serious medical conditions.”  There is a consensus among federal courts that gender dysphoria is a “serious medical condition,” but there is no judicial consensus about whether sex reassignment surgery is a necessary treatment for it, and to date there is no final ruling on the merits by any federal appeals court ordering a state to provide sex reassignment surgery to a transgender inmate.  As the courts have interpreted the 8th Amendment’s ban on cruel and unusual punishment, a “necessary” treatment is one that has achieved general acceptance in the relevant medical specialty, and some courts have relied on Standards of Care published by the World Professional Association for Transgender Health (WPATH) as potentially supporting general acceptance – however, Judge Ho asserts, only in denying motions to dismiss cases, not in ultimate rulings on the merits.

The WPATH Standards state that “for many, surgery is essential and medically necessary to alleviate their gender dysphoria.”  But, Judge Ho observes, in the Kosilek decision, the 1st Circuit reported expert testimony sharply divided over whether sex reassignment is necessary treatment, and some testimony suggesting that WPATH is not an objective source but rather an organization devoted to advocacy for transgender rights whose published standards do not necessarily reflect a consensus of the medical profession, or even of individuals specializing in providing treatment to transgender patients.  Be that as it may, to the Gibson panel majority, this was sufficient to suggest that there is “serious dispute” within the medical profession about the necessity for sex reassignment surgery, and so long as that situation prevails, it is not “deliberate indifference” by the Texas corrections system to categorically refuse to provide such treatment.

While many federal courts have made clear that hormone therapy can be considered necessary for cases of severe gender dysphoria, and that counseling by itself is not always sufficient to meet the constitutional standard of care, even that point is not universally accepted, as Judge Ho demonstrated by citing cases on both sides of the question.  Regardless of how the medical necessity point is resolved, however, the judge pointed out that under the 8th Amendment’s language – cruel and unusual – it is not unusual to deny sex reassignment surgery to inmates diagnosed with gender dysphoria – indeed, it is the norm – and thus such denial cannot be found to violate the Constitution as an “unusual punishment.”

Judge Barksdale’s dissent argued that Gibson has never been afforded the opportunity in the lower courts to present any evidence beyond the factual assertions in her complaint. “Accordingly,” she wrote, “as the majority notes correctly, this appeal springs from this very unusual and improper procedure and resulting sparse summary-judgment record, which is insufficient for summary judgment purposes,” so she dissented from “the majority’s reaching the merits of this action, which concerns the Eighth Amendment’s well-established requirements for medical treatment to be provided prisoners.”

Judge Ho specifically responds to Barksdale’s various objections by asserting that it would be a waste of time and judicial resources to remand the case to build a factual record because, as he found, categorical denial of a right to sex reassignment surgery is so well-founded in the existing case law and facts readily available from published sources, including the Kosilek decision, that there is no need to compile a record of the individual facts of Gibson’s case.  The panel majority considers that Gibson’s factual allegations fail to generate material fact issues that would need to be resolved before the court could render a decision on the merits as a matter of law. To the majority, there is no disputing that medical practitioners are divided as to whether sex reassignment surgery is a necessary treatment, so there is no need for inquiry into Gibson’s individual case.

Judge Ho drew an analogy to an attempt by an inmate to obtain a drug that the Food and Drug Administration (FDA) has not approved, pointing out that no court would find that a prisoner’s right to receive necessary treatment would be abridged by refusing to provide a treatment that has not been approved by the FDA.  He also relies on some outdated information concerning practices under Medicaid and Medicare, as the Obama Administration withdrew the formal refusal to fund sex reassignment surgery under those programs, and there actually is a small but growing body of case law finding that these government programs must provide such treatment in appropriate cases, consistent with the Equal Protection Clause.  There is also a U.S. Tax Court decision finding that the costs of sex reassignment surgery are tax deductible, based on its conclusion that it is a medical necessary treatment within the meaning of the Internal Revenue Code’s medical deduction provisions.  (Law Notes reports below a new decision by the Iowa Supreme Court holding that refusing to provide such treatment under the state’s Medicaid program violated the Iowa civil rights law’s ban on gender identity discrimination. EerieAnna Good and Carol Beal v. Iowa Department of Human Services, 2019 WL 1086614, 2019 Iowa Sup. LEXIS 19 (March 8, 2019).)  But what Ho is looking for is a professional medical consensus, not a legal consensus, and that has not yet been achieved, in the court’s view.

Gibson can seek rehearing en banc or petition the Supreme Court for further review.  Failing that, however, the precedent is now set for the states of the 5th Circuit – Texas, Louisiana and Mississippi – as they were previously set for the 1st Circuit – Maine, New Hampshire, Massachusetts, and Rhode Island, and Puerto Rico – that state corrections systems can categorically refuse to provide gender confirmation surgery to transgender inmates.

Supreme Court Stays Two Preliminary Injunctions Against Transgender Military Ban, Leaving Only One Injunction in Place

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

On January 22 the Supreme Court granted applications by Solicitor General Noel Francisco to stay the two nationwide preliminary injunctions that were issued in December 2017 by U.S. District Judges on the West Coast to stop President Donald Trump’s ban on military service by transgender individuals from going into effect. The vote was 5-4, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicating that they would have denied the applications for stays. Although the stays mean that the Trump Administration’s transgender military ban is no longer blocked by those two injunctions, it is still blocked by an injunction issued by a federal judge in Baltimore.

The Supreme Court issued these two stays “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” At the same time, the Supreme Court denied the Solicitor General’s petitions to leapfrog the 9th Circuit and take its appeal of the district court actions for direct review. These petitions were practically rendered moot, at least for now, by the Supreme Court’s granting of the stays. When the Court made its announcement at 9:30 am on January 22, the 9th Circuit had not yet ruled, although a three-judge panel heard oral arguments on the government’s appeal several months ago.

The Supreme Court’s action did not immediately allow the Defense Department to implement the ban, however. That awaits a ruling by U.S. District Judge George L. Russell, III, who is still considering the government’s motion to dissolve the nationwide preliminary injunction issued on November 21, 2017, by now-retired U.S. District Judge Marvin J. Garbis in Baltimore in Stone v. Trump. That case was reassigned to Judge Russell after Judge Garbis retired last June. On November 30, Judge Russell issued his only ruling in the case so far, largely affirming an August 14 ruling by Magistrate Judge A. David Copperthite on disputed discovery issues in the case. However, in his November 30 ruling, Judge Russell rejected the government’s contention that certain “findings of fact” by Judge Copperthite were unreasonable. Among those were Copperthite’s finding that the version of the ban announced by Defense Secretary James Mattis in February 2018, which Trump authorized Mattis to put into effect, was still a ban on military service by transgender people, despite differences from the version described by the White House in an August 2017 memorandum.

On January 4, 2019, the U.S. Court of Appeals for the D.C. Circuit vacated a similar preliminary injunction that was issued on October 31, 2017, by Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., and directed Judge Kollar-Kotelly to reconsider her conclusion that the version of the ban that President Trump authorized Mattis to implement was essentially the same ban that she had enjoined. The D.C. Circuit panel unanimously ruled, based on the government’s allegations about the differences in the policies, that her conclusion was “clearly erroneous.” The D.C. Circuit’s ruling was, of course, not binding on Judge Russell, because Maryland is under the jurisdiction of the 4th Circuit Court of Appeals, but it may influence Judge Russell’s consideration of that issue while he ponders how to rule on the government’s motion pending in his court.

The government’s position in all four of the pending cases challenging the constitutionality of the ban has been that the “Mattis Policy” announced in February 2018 was significantly different from the version of the ban described in Trump’s August 2017 Memorandum, and thus that the four preliminary injunctions against the August 2017 version should be vacated as moot.

The government now takes the position that the so-called “Mattis Policy,” which bans service by individuals who have been diagnosed with gender dysphoria, is no longer a categorical ban of all transgender service members, as described in Trump’s notorious tweets of July 26, 2017. For one thing, the Mattis Policy carves out an exception, allowing transgender individuals who are already serving to continue doing so despite being diagnosed with gender dysphoria, although those who have not transitioned when the new policy goes into effect will not be allowed to do so and still remain in the service. (This exception, of course, contradicts the government’s argument that individuals diagnosed with gender dysphoria are not fit to serve.) For another thing, the Defense Department contends that because not all individuals who identify as transgender have either been diagnosed with gender dysphoria or desire to make a medical transition, the basis for the disqualification for military service has effectively been shifted by the Mattis Policy from gender identity to gender dysphoria. As such, the government argues, the district courts’ conclusion that the ban discriminates on the basis of transgender status in violation of Equal Protection no longer applies. Instead, the ban is based on a medical condition, as to which the courts should defer to military expertise, because courts have never second-guessed the military’s determination that people with a diagnosed medical condition may be unfit to serve.

The Supreme Court’s action does not grant the government’s request to dissolve the preliminary injunctions that were issued in December 2017 by District Judges Marsha J. Pechman (Seattle) and Jesus Bernal (Riverside, California), and thus should not be interpreted as taking a position on whether those injunctions should have been issued, but merely agrees to the government’s request to stay their effect while the 9th Circuit decides how to rule on the government’s appeal from those district judges’ denial of the government’s motions to dissolve the injunctions. In the meantime, all four district courts are dealing with contentious arguments as the government refuses to comply with the plaintiffs’ discovery demands, making it difficult for the courts to proceed with the cases. These cases are raising significant issues about the extent to which the government should be forced to disclose details of its decision-making process that are crucial to determining whether the policy they are now defending was adopted for constitutionally impermissible reasons.

Attention now focuses on Judge Russell, whose eventual ruling on the government’s motion to dissolve Judge Garbis’s preliminary injunction will decide, at least for the moment, whether the transgender ban goes into effect or remains blocked while the litigation continues. If Judge Russell follows the lead of the other district judges, he will deny the motion and Solicitor General Francisco will likely petition the Supreme Court to grant a stay similar to the ones issued on January 22. The question now is whether Judge Russell finds the D.C. Circuit’s analysis to be persuasive. If he does, the ban may go into effect, even as all four cases challenging the ban continue to be fiercely litigated by the plaintiffs.

As to the stays issued on January 22, the Supreme Court’s Order says that if the government is dissatisfied with the 9th Circuit’s disposition of its appeals and files new Petitions for Supreme Court review, the stays will remain in effect. If the Court ultimately denies such petitions, “this order shall terminate automatically.” If the Court grants those petitions, the stay would remain in effect until the Supreme Court rules on the appeal.

D.C. Circuit Panel Dissolves Preliminary Injunction Against Trump Trans Military Ban

Posted on: January 4th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on January 4 that U.S. District Judge Colleen Kollar-Kotelly should not have denied a motion earlier this year by the Justice Department to dissolve a preliminary injunction she issued more than a year ago to block the Trump Administration’s ban on transgender military service from going into effect. The court did not issue a formal opinion, instead releasing a “Judgement” that was not designated for publication, although it indicated that “separate opinions” by the judges “will be filed at a later date.”  The case is now called Jane Doe 2 v. Shanahan, as Trump has been removed as an individual defendant, and Acting Secretary of Defense Patrick M. Shanahan is now the lead defendant.

The ruling, although quickly described in the press as a victory for the Trump Administration, will have no immediate effect, because nationwide preliminary injunctions against implementation of the ban issued by three other U.S. District Courts remain in effect. However, the explanation issued by the judges marks the first time that any federal judge has found it appropriate to adopt a deferential standard of review either to Trump’s original policy declaration pronounced through twitter messages on July 26, 2017, to a subsequent White House memo amplifying the policy, or to the policy adopted for implementation by former Defense Secretary James Mattis with the president’s approval in February 2018.

In her October 30, 2017, ruling granting the plaintiffs’ motion for a nationwide preliminary injunction against implementation of the ban, Judge Kollar-Kotelly found that the plaintiffs were likely to prevail on the merits of their claim that the ban announced by Trump in July and amplified in the August 2017 memorandum violated their equal protection rights under the 5th Amendment, and allowing the ban to go into effect would cause irreparable injury to the plaintiffs while not shown to be harmful to national security, as alleged by the government.  See 275 F. Supp.3d 167.

Judge Kollar-Kotelly was the first to enjoin the ban, but three other district courts issued similar opinions authorizing virtually identical nationwide preliminary injunctions over the ensuing weeks, from courts located in Baltimore, Maryland, Seattle, Washington, and Riverside, California.

While the litigation was going on in the district courts, Secretary Mattis appointed a task force as directed in the White House memorandum, to devise an implementation plan for the ban. This was submitted to the president in February, 2018, in response to which he issued a new memorandum revoking his prior memorandum and authorizing Mattis to implement the plan he had proposed. Mattis’s plan was accompanied by a Report purportedly devised by this Task Force of “experts” (none of them named in the document or otherwise), although knowledgeable observers noted striking resemblances to articles published by conservative think-tanks opposed to transgender rights.

After Mattis adopted the plan for implementation, the Justice Department filed motions in the four district courts arguing that the preliminary injunctions should be dissolved because they were directed at a policy that had been revoked, and the “new” Mattis policy was sufficiently different from what Trump had originally announced to change the analysis. Thus far, three of the district courts have denied the Justice Department’s motion, which is still pending in the fourth court. The three judges who denied the motion all concluded that the Mattis policy was substantially the same as the Trump policy that they had preliminarily enjoined, and that no new development justified allowing the ban to go into effect while the lawsuits played out. In the fourth case, the judge who issued the injunction retired in June 2018 and the case was assigned to a new judge, who has yet to rule on the motion.

The Justice Department appealed the three rulings to the D.C. and 9th Circuit Courts of Appeals. As of January 4, the 9th Circuit had not issued a ruling on the appeal, but had refused to stay the injunctions issued by the district judges in Seattle and Riverside.

Impatient at the pace of litigation, the Solicitor General filed Petitions in the Supreme Court late in November seeking to leapfrog the courts of appeals and have the Supreme Court directly address whether the preliminary injunctions should be lifted, and then filed motions with the Court in all three cases in December, seeking a “stay” of the injunctions or their narrowing to apply only to the plaintiffs rather than to have nationwide effect. Those petitions and motions had been scheduled by the Court to be discussed in its private conference on January 11.

The D.C. Circuit panel that ruled on January 4 consisted of Judges Thomas B. Griffith (appointed by George W. Bush), Robert L. Wilkins (appointed by Barack Obama), and Senior Judge Stephen F. Williams (appointed by Ronald Reagan).

The panel found that Judge Kollar-Kotelly had “clearly” erred in concluding that the Mattis policy adopted in February 2018 was substantially the same as the Trump policy that she had preliminarily enjoined in October 2017. The court pointed out that unlike the original policy, Mattis’s plan was not a total ban. It “grandfathers” currently serving transgender personnel who had “come out” in reliance on former Defense Secretary Ashton Carter’s lifting of the long-standing ban on transgender military service effective July 1, 2016, many of whom then initiated transition, including in some cases complete surgical gender affirmation, and were successfully serving in the gender with which they identify. Mattis would let them continue to serve.

Furthermore, seeking to escape the equal protection arguments made by the plaintiffs and preliminarily accepted by the district judges, Mattis’s “experts” had reconfigured the ban to be based not on transgender identity, but rather on a diagnosis of “gender dysphoria,” the term used in the most recent addition of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM). Now the government was arguing that it was disqualifying people who had been diagnosed with a professionally recognized medical condition, which the DSM describes in terms of symptoms that – at least as described in the DSM – would sound disabling.

Under Mattis’s version of the policy, anybody diagnosed with gender dysphoria would be disqualified from enlisting or from continuing to serve, unless they were “grandfathered” under the policy. Individuals who identify as transgender but have not been diagnosed with gender dysphoria would be allowed to enlist and serve, provided they did not seek to transition and would serve in the gender with which they were identified at birth, called by the policy their “biological sex.”

Lawyers for the plaintiffs in the four cases have pointed out that this is a semantic game, but the court of appeals indulges the government’s distinction between status and medical diagnosis, pointing out that the lawyers for the plaintiffs have stated in their briefs and arguments that not all transgender people are diagnosed with gender dysphoria or seek to transition. Thus, in the view of the court, agreeing with the Justice Department, the policy does not ban service by transgender people, as such – just by those diagnosed with gender dysphoria or who wish to transition and serve in other than their sex identified at birth.

The district judges had found that in practical terms this amounted to the same transgender ban that Trump had proclaimed, with the exception of the “grandfathered” personnel, estimated at about 900 people according to the January 4 D.C. Circuit ruling. But the court of appeals disagreed, finding it different.

Furthermore, said the court, since Mattis claimed to have adopted this policy on the recommendation of an “expert” Task Force that had produced a report, it was entitled to the judicial deference normally accorded to military personnel policies. For purposes of deciding on preliminary injunctive relief, the court of appeals found that the district court should have essentially taken the Justice Department’s representation of the policy at face value and not concluded that the plaintiffs were likely to prevail on their equal protection claim.

At the same time, the D.C. panel said that it was not speaking to the ultimate merits of the case. The court said that it was vacating the preliminary injunction but “without prejudice,” which means that it is possible that after discovery has been concluded, the plaintiffs could come back and try to persuade the court that the policy was not entitled to deference and was not justified for the purposes cited by the government. This does not allow the ban to go into effect, as noted above, because nationwide preliminary injunctions remain in effect in three other cases.

Since the D.C. Circuit’s ruling gives the government exactly what it sought in its appeal, the Solicitor General should be withdrawing his petition and motion from the Supreme Court in this case. But since the 9th Circuit has not ruled on the other two appeals, the Petitions filed in those cases will still be before the Supreme Court at its January 11 conference. And the D.C. Circuit’s ruling may influence the district court in Baltimore, which has yet to rule on the government’s motion to dissolve the injunction in that case.

The plaintiffs are represented by Kevin Matthew Lamb, Paul Reinherz Quitma Wolfson, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, Adam M. Cambier, Christopher R. Looney, Harriet Hoder, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, MA, Alan E. Schoenfeld, Wilmer Cutler Pickering Hale & Dorr, LLP, New York, NY, Amy Whelan, Christopher F. Stoll, Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA, Claire Laporte, Daniel L. McFadden, Kathleen M. Brill, Matthew E. Miller, Michael J. Licker, Rachel C. Hutchinson, Foley Hoag, LLP, Boston, MA, Jennifer Levi, Mary L. Bonauto, GLBTQ Legal Advocates & Defenders, Boston, MA, and Nancy Lynn Schroeder, Wilmer Cutler Pickering Hale & Dorr LLP, Los Angeles, CA.

Iowa Judge Strikes Down Medicaid Ban on Sex Reassignment Surgery

Posted on: July 2nd, 2018 by Art Leonard No Comments

An Iowa trial judge ruled on June 6 that a state regulation prohibiting Medicaid coverage for sex reassignment surgery violates the state’s Civil Rights Act as well as the equal protection requirement of the state’s Constitution. Ruling on appeals by two transgender women who were denied preclearance for the procedures, Polk County District Judge Arthur E. Gamble rejected the state’s argument that the public accommodations law is inapplicable.

Iowa has a rather unusual history with this issue. Back in the 1970s, a transgender woman appealed a denial of benefits for sex reassignment surgery to federal court, winning a ruling from the district court and, in 1980, the 8th Circuit Court of Appeals, which held that under the federal Medicaid statute, as then written, such surgery was covered under a general category of medically necessary in-patient hospital services.  The federal Medicaid program subsequently adopted policy statements disavowing the 8th Circuit’s approach, purporting to relieve state Medicaid programs from any obligation to cover sex reassignment procedures.  The federal agency backed away from that position during the Obama Administration, taking a neutral stance on what states might cover, although the Affordable Care Act, which prohibits sex discrimination by health care providers, might be construed to require such coverage.  But the Trump Administration now take the position, contrary to the Obama Administration, that gender identity discrimination is not covered under sex discrimination.

In 1991, the Iowa Department of Human Services (DHS), ruling on a similar coverage claim, held that the language of the state’s Medicaid regulations required coverage. This prompted the state to take steps to change the regulatory language.  In 1995, relying on a report prepared by the Iowa Foundation for Medical Care, a non-profit that studies and generates reports on health care policy issues, DHS adopted new regulatory language, explicitly excluding from coverage “procedures related to transsexualism, hermaphroditism, gender identity disorders, or body dysmorphic disorders.”  Also excluded were “breast augmentation mammoplasty, surgical insertion of prosthetic testicles, penile implant procedures, and surgeries for the purpose of sex reassignment.”  This was included with a general ban on cosmetic procedures “performed primarily for psychological reasons or as a result of the aging process.”  The position of DHS in 1995, reiterated in this lawsuit, is that gender identity is entirely a psychological issue.

Although the 1995 Regulation has been reviewed by the agency numerous times since then, it has never been altered to take account of the changing medical consensus on gender identity and the role of sex reassignment procedures in treating gender dysphoria.

This is where the state fell down in the appeals filed by Eerieanna Good and Carol Beal from the denial of pre-clearance for their procedures. Their attorneys, Rita Bettis and Seth Horvath, retained the services of a distinguished expert, Dr. Randi Ettner, an author of several books on gender identity issues who has done a fair amount of public speaking and television appearances, who testified in detail about the current medical consensus about the nature of gender identity and appropriate health care for those diagnosed with gender dysphoria.  The current consensus goes beyond psychology to invoke fetal development, hormones, genes, and a biological basis for gender identity as a deeply rooted trait that is largely impervious to change, and these concepts are reflected in more up-to-date standard medical reference sources.

DHS did not produce an expert witness, instead resting on that quarter-century old Iowa Foundation report, which was mired in thinking already verging on obsolescence at the time, labeling “transsexualism” as purely a psychological issue and sex reassignment as essentially cosmetic.

Judge Gamble was not convinced by the state’s argument, finding Dr. Ettner’s testimony convincing and consistent with the medical literature. Gender identity issues are about more than psychology, the state agency has failed to keep up with the times, and the beliefs on which it based its 1995 regulation no longer enjoy professional acceptance in the field.  These findings clearly supported Judge Gamble’s conclusion that the Regulation is vulnerable to attack.

The state tried to argue that the Iowa Civil Rights Act, which was amended several years ago to add “gender identity” to the list of forbidden grounds of discrimination in public accommodations, did not apply. Medicaid, argued the state, is not a “public accommodation.”  Judge Gamble decided the state was mischaracterizing the issue.  Medicaid is a service, overseen and provided in Iowa through contracts with private managed care organizations (MCOs) by the DHS. The DHS, as a “unit of government,” is clearly a “public accommodation” within the meaning of the law, as are the MCOs that administer the program.

When the doctors for Good and Beal applied for pre-clearance to perform the medical procedures and were turned down, the MCOs relied on the DHS regulation, not engaging in any individualized evaluation of the claims. Similarly, when Good and Beal filed internal appeals, the DHS itself denied their appeals without any individualized analysis, merely invoking the old regulation. Thus, by refusing to authorize the procedures under Medicaid, the DHS, a public accommodation, was denying a service to Good and Beal.  And the court concluded that this denial was because of their gender identity, taking note of how the Regulation explicitly targeted transgender people for discrimination.

The plaintiffs had also claimed sex discrimination, but Judge Gamble found that under an old state supreme court decision that has never been overruled, he was precluded as a state trial judge from treating a gender identity discrimination claim as a sex discrimination claim under state law, although he acknowledged that many federal courts of appeals have now agreed with the argument that gender identity claims are covered by laws banning sex discrimination.

Turning to the constitutional challenge, Judge Gamble had to determine the level of judicial scrutiny to be applied to gender identity discrimination by a state agency, a question of first impression under the Iowa Constitution. He looked to the Iowa Supreme Court’s historic decision Varnum v. Brien from 2009, in which the Iowa Supreme Court became the first state high court in the nation to rule by unanimous vote that same-sex couples are entitled to marry.  In that case, the court had to determine the level of judicial scrutiny for a claim that the marriage laws unconstitutionally discriminated against gay people, and concluded that such discrimination was subject to heightened scrutiny, placing a significant burden of objective justification on the state.

Gamble found many parallels to the analysis of sexual orientation and gender identity claims, and concluded that heightened scrutiny should apply, having identified transgender people as a “quasi-suspect class.” The state had utterly failed to meet its burden of proof here, resting on outmoded misunderstanding of gender identity and failing to counter the plaintiffs’ expert testimony.  Hedging his bets in case of an appeal, Judge Gamble also evaluated the policy under the less demanding rational basis test, but the state fared no better, as he found that the plaintiffs “negated every reasonable basis for the classification that might support disparate treatment.  The Regulation’s exclusion of surgical treatment for Gender Dysphoria does not pass under rational basis review,” concluded Gamble, who went on to agree with the plaintiffs that continuing to enforce the Regulation violated the state’s Administrative Procedure Act, as being an “arbitrary or capricious” administrative action, depriving them of equal rights.

“While the Court understands that DHS is in some respect obligated to enforce the administrative rules as previously adopted,” Gamble wrote, “it also owes an obligation to ensure those rules conform to the statutes like the [Iowa Civil Rights Act] and the Iowa Constitution which trump any prior administrative rule. DHS also has an obligation to keep up with the medical science.  DHS failed to do so when it denied coverage to Good and Beal for medically necessary gender affirming surgery.  This decision was made without regard to the law and facts.  The agency acted in the face of evidence upon which there is no room for difference of opinion among reasonable minds.  The exclusion of coverage was unreasonable arbitrary and capricious.”

Finally, Judge Gamble rejected DHS’s plea to limit the scope of his ruling by giving the agency time to develop a new regulation and not make the court’s order immediately binding, or to write a narrow order that would not have any broader effect. Gamble refused to be so limited, pointing out that the plaintiffs had already suffered undue delay and were entitled to the coverage mandated by law.  A total wipe-out of the state’s position.  The Iowa Attorney General’s office did not offer any comment in the immediate aftermath of the ruling, which could be appealed.

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.

Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

Posted on: November 24th, 2017 by Art Leonard No Comments

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.