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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.

Transgender Woman Wins New Trial on Inheritance From Her Husband

Posted on: February 14th, 2014 by Art Leonard No Comments

A three-judge panel of the Texas Court of Appeals ruled on February 13 that Nikki Araguz, a transgender woman who is the surviving spouse of Texas firefighter Thomas Araguz, is entitled to a trial of the question whether her marriage with Thomas was valid. Thomas died without a will, and his mother and ex-wife (suing on behalf of his children) contend that the marriage was not valid and thus cannot provide the basis for an inheritance for Nikki. Estate of Thomas Trevino Araguz III, 2014 Tex. App. LEIS 1573 (Tex. App., 13th Dist.).

Born Justin Graham Purdue in California in 19775, Nikki Araguz grew up in the Houston area and self-identified as female from a very early age. Indeed, evidence related by Chief Justice Rogelio Valdez in the opinion for the court suggests that Araguz always dressed as female. At eighteen, Araguz was diagnosed as having gender dysphoria, and began treatment, including hormone therapy and living as a woman. When she was 21, she filed a petition in the Texas District Court for a name change to Nikki Paige Purdue, which was granted by the court in 1996. She then filed an application in California to amend her birth certificate to show her new name, which was granted. She used the new birth certificate when she obtained a driver’s license in Kansas identifying her as female, and then used that license to get a Texas driver’s license, also indicating she was female.

On August 19, 2008, Nikki and Thomas Araguz applied for a marriage license in Wharton County, Texas. The license identifies Nikki as “woman.” The wedding was held on August 23. At that time, Nikki had transitioned in all respects except one: she had not yet undergone sex reassignment surgery, a procedure for which she had been saving money all her adult life. In October 2008, a few months after her marriage, she had the procedure, which was performed in Texas by Dr. Marci Bowers.

On April 28, 2010, Thomas gave a deposition in a family court proceeding involving the custody of the children from his first marriage, in which he stated, under oath, that he did not know that Nikki had undergone genital reassignment surgery, or that Nikki was “formerly male” or had undergone any type of “gender surgery.” Thomas testified in the deposition that Nikki always represented herself as female before their marriage. In the current proceeding, Nikki alleges that she and Thomas had agreed to take the position that she was female from birth, but Thomas was fully aware of the facts when they were married.

Thomas died on July 3, 2010, without a will. Less than two weeks later, Nikki filed a petition in San Francisco, California, Superior Court, seeking a new California birth certificate specifically designating her as female, which was evidently a detail she had overlooked when a decade earlier she had applied for a birth certificate showing her new name. This was granted by the court and California issued a new birth certificate designating Nikki as “female” on August 30, 2010, almost two months after her husband died.

Under rules of intestate succession, a surviving wife is the principal heir of a man who does not leave a will. If there are surviving children, the estate is split between the widow and the children. If there is no surviving spouse, a surviving parent may inherit, and surviving children are legal heirs as well. In this case, Thomas’s mother, who otherwise would not inherit, filed a lawsuit seeking appointment as administrator of her son’s estate and asking the court to declare that his marriage to Nikki was a “void” same-sex marriage, barred by Texas law. Thomas’s ex-wife also filed suit on behalf of the two minor children, also arguing that the marriage with Nikki was void.

In response, Nikki sought to vindicate her claim to be a surviving spouse, arguing that she was a woman at the time of her marriage. In support of this claim, she presented an affidavit from Dr. Collier Cole, a gender identity expert, who asserted that Nikki would be recognized as a woman at the time she married.

Another fact that is not part of Nikki’s story is also relevant. In 1999, the Texas Court of Appeals ruled in Littleton v. Prange that a marriage between a transsexual woman and a man was void as a same-sex marriage, regardless whether the woman had fully transitioned before the marriage. The Littleton court insisted that one’s gender as identified at birth was fixed for purposes of the marriage law, because no medical or surgical procedure could alter one’s genetic makeup and somebody born male could not be provided with female reproductive capacity. In 2009, the Texas legislature amended the state’s Family Code to provide that “an original or certified copy of a court order relating to the applicant’s name change or sex change” could be “proof of identity and age” for purposes of getting a marriage license. Thus, an important question in this case is whether the 2009 amendment had overruled Littleton v. Prange, in effect authorizing marriages between transsexual women and men (or vice versa).

The trial judge in Wharton County had granted summary judgment to Thomas’s mother and ex-wife, and denied Nikki’s motion for summary judgment, evidently finding that Littleton was a controlling precedent and that, as she still had male genitals when she was married, this was a void marriage between two men.

The court of appeals disagreed. The court found that the 2009 amendment had actually overruled Littleton, making it possible for a transgender woman to marry a man by using a court order relating to a name change or sex change as “proof of identity.” This overruling took place after the marriage of Nikki and Thomas, but before Thomas’s death. This does not end the case by any means, because the parties hotly contest whether Nikki was a woman at any relevant time from the date of the marriage until the date of Thomas’s death. Nikki had not had gender reassignment surgery until after the marriage, and did not obtain a new birth certificate specifically designating her as female until after Thomas’s death. It seems clear from the facts that Thomas’s affidavit given in the custody proceeding was false, as it is unlikely that a man who married a woman who had male genitals at the time of the marriage and who did not undergo sex reassignment surgery until several months into the marriage could possibly be “unaware” that his spouse had previously been a man or had undergone a gender-related medical procedure.

The Texas legislature’s 2009 amendment does not provide any clarity or guidance by setting specific standards for determining when a court can give an order relating to a sex change, so a determination must be made, probably as part of further litigation in this case, whether a person with male genitals can be considered female for purposes of the marriage law, based on the court order granting a name change with the corroborating evidence of a birth certificate indicating the new name and a driver’s license designating the individual as female. Dr. Cole, the only expert witness in the case so far, testified by affidavit that the determination of gender does not depend on surgical alteration, the most important factors being that the individual had been diagnosed with gender dysphoria and had lived in the preferred sex for at least a year, during which hormone treatment was taking place. The plaintiffs in this case (the mother and the ex-wife) had not presented any expert witness to counter this testimony, but the court said that the undisputed evidence that Nikki still had male genitals at the time of the marriage was sufficient to place in issue what her sex was at that time, at least for purposes of a trial as to the validity of the marriage. Texas recognizes the concept of informal marriage, under which the marriage of Nikki and Thomas could be valid if Nikki was legally female at any time before Thomas’s death, even if she would not have been considered female at the time of the marriage ceremony.

The court stated that the concept of gender dysphoria was not a matter of common knowledge, or generally within the expected knowledge of typical jurors or judges, so it was necessary to consider expert testimony in determining the answers to the factual questions in this case. Consequently, it was error for the trial judge to grant summary judgment, especially when the only expert testimony in the record, from Dr. Cole, supported Nikki’s claim that she was female when she married Thomas. It may be that as this case is litigated the Texas courts will give legal effect to the Standards of Care recognized by the World Professional Association for Transgender Health, under which Nikki would be deemed female as of the date of her wedding. Clearly, this court finds that the 2009 statutory amendment overruled Littleton, so it is possible for somebody who has been through a “sex change” — whatever that involves — to marry consistent with their gender identity.

Other lawsuits are pending in Texas challenging the state’s ban on same-sex marriage. Were the ban to be invalidated, same-sex marriages would not be void in Texas, and it would be clear that transgender people can marry any willing partner, regardless of sex, who is interested in marrying them and not otherwise disqualified by virtue of age, disability, or close legal relationship. But until marriage equality becomes a reality in Texas, this case may serve to provide the basis for transgender people to marry the partner of their choice.

1st Circuit Affirms Order for Sex Reassignment Surgery for Life Inmate

Posted on: January 18th, 2014 by Art Leonard 1 Comment

A three-judge panel of the Boston-based U.S. Court of Appeals for the 1st Circuit voted 2-1 to affirm the district court’s decision that the Massachusetts Department of Corrections (DOC) violated the 8th Amendment when it refused to provide sex-reassignment surgery for Michelle Kosilek, who is serving a life-sentence without the possibility of parole for the murder of her wife. The ruling may not conclude the action, since the state’s staunch opposition to providing the surgery will likely lead it to seek further review from the Supreme Court, especially in light of the dissenting opinion in the court of appeals. Kosilek v. Spencer, 2013 U.S. App. LEXIS 951, 2014 WL 185512 (1st Cir., Jan. 17, 2014). The court’s opinion made no mention of staying the trial court’s injunction pending an appeal to the Supreme Court. U.S. District Judge Mark Wolf had directed the Department of Corrections (DOC) to identify a suitable doctor and make arrangements to be prepared to provide the surgery if his order was upheld by the court of appeals, but Kosilek’s counsel have criticized the state for dragging its feet in making these contingent arrangements.

Kosilek, now 64 years old, has been incarcerated at MCI-Norfolk since 1994. According to the opinion for the court by Circuit Judge O. Rogeriee Thompson, Kosilek, who “was born and still is anatomically male,” experienced a turbulent childhood and “suffered regular abuse as a child, in part because of her expressed desire to live as a girl.” Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility where Kosilek was receiving treatment. “McCaul thought she could cure Kosilek’s gender identity disorder,” wrote Judge Thompson, but that did not turn out well, as Kosilek murdered McCaul and fled the area in 1990. She was apprehended in New York and brought back to the Bristol County Jail to await trial. While there, she took female hormones in the form of birth control pills she “illicitly obtained from a guard.” She attempted suicide twice while awaiting trial, and also attempted to castrate herself.

After she was convicted and sent to MCI-Norfolk, she sought treatment for her gender dysphoria. Although DOC’s medical staff agreed that she genuinely suffered from gender identity disorder, the Commissioner of Corrections took the position that no inmate should receive hormone treatment if they were not already on such a regimen prior to their conviction. Kosilek sued, as a result of which she ended up obtaining hormone treatment and eventually other accommodations to her desire to live as a woman while in prison, includng electrolysis to remove unwanted body hair, cosmetics and some feminine garments. Although she was housed in general population in an all-male prison, there were no untoward incidents and she had an excellent disciplinary record. However, DOC absolutely refused her request for surgery to make her gender transition complete, or to consider moving her to a women’s prison, resulting in this second lawsuit.

The case consumed several years in the district court, with at least three rounds of testimony from various medical experts, some presented by Kosilek, some by DOC, and a “neutral” expert appointed by the Judge Wolf. On September 4, 2012, Judge Wolf issued his decision, finding that DOC’s continued denial of sex reassignment surgery to Kosilek violated her rights under the 8th Amendment of the U.S. Constitution. Wolf ordered DOC to provide the surgery for Kosilek, but stayed his ruling pending appeal. At the time, no federal court had ever ordered a state prison system to provide sex reassignment surgery to an inmate. Since then, the 7th Circuit has ruled that a state law banning the prison system from providing such treatment is unconstitutional, and the 4th Circuit has ruled that prisoner authorities must evaluate an inmate for potential sex reassignment surgery and provide the procedure if medical experts agree that it is necessary for the inmate’s health.

The 8th Amendment bans “cruel and unusual punishment.” The Supreme Court has interpreted this to mean that if an inmate has a serious medical need, prison authorities are required to provide minimally adequate treatment to prevent serious harm to the inmate. Many courts have ruled on situations where transgender inmates sought treatment in prison, and a consensus has emerged that such inmates are entitled to hormone therapy at the state’s expense if qualified medical personnel diagnose gender dysphoria and agree that hormone therapy is necessary to meet the inmate’s medical needs. However, there is not yet a consensus that the 8th Amendment requires prison systems to provide sex reassignment surgery.

In this case, Judge Wolf concluded that the expert testimony supported Kosilek’s claim, and a majority of the court of appeals agreed. One point of contention between the majority and the dissenter, Circuit Judge Juan R. Torruella, concerned the appropriate standard for reviewing the district court’s decision. Generally, the court of appeals will give great deference to fact finding by a trial judge, and the majority felt that most of the key findings in this case were factual findings that should be upheld unless they were clearly erroneous. Judge Torruella argued that many of these findings concerned mixed questions of fact and law as to which less deferential review was warranted.

But Judge Torruella’s more serious objection was to the majority’s conception of what the 8th Amendment requires. He noted that the trial record indicated that Kosilek is receiving substantial treatment, both psychological and medical, for her gender dysphoria, and argued that it could not be said that DOC is being “deliberately indifferent” to Kosilek’s medical needs, in light of the security and logistical challenges posed by sex reassignment surgery, which would necessarily have to take place outside of facilities under DOC’s control, and by the need to properly house Kosilek after the surgery.

All the judges agree that DOC’s objection to providing the surgery is not based on expense, which, according to newspaper reports, can range from $7,000 to $50,000, depending on the extent of necessary cosmetic work. DOC offered various non-expense related reasons for denying Kosilek’s demands, but Wolf found none of them convincing. He found that DOC had unduly inflated the security concerns, and he concluded that DOC’s objections were raised in bad faith, influenced inappropriately by the political controversy that Kosilek’s case had inspired after Boston media ran feature stories about the case early on. Groups of state legislators sent letters to the Corrections Commissioner strongly objecting to spending state funds on sex reassignment surgery for a convicted murderer who would be spending the rest of her life in prison. Although the Commissioner testified that the department’s opposition to surgery for Kosilek was not due to political pressure, Wolf did not believe it.

The majority also endorsed Judge Wolf’s finding that some of the expert testimony was based on inadequate information, as some of the experts who testified about the security issues were not informed about Kosilek’s age and exemplary disciplinary record in prison. Wolf had totally discounted the testimony of one of the state’s experts, concluding that he was specifically sought out by the state because he was known to be opposed to sex reassignment surgery. Judge Torruella, the dissenter, was critical of this, noting that another of the experts had testified that the state’s expert’s testimony was within the bounds of professional opinion on the subject. Professional views range across a wide spectrum as to the appropriate treatment for gender dysphoria, both outside and inside prisons, but Judge Wolf, and the majority of the court, took as reasonably established the Harry Benjamin Standards of Career that have been accepted by many courts as the baseline for evaluating the adequacy of treatment in a prison setting. These standards provide for sex reassignment surgery if hormone therapy proves insufficient to deal with the individual’s strong gender dysphoria. One expert had testified that Kosilek suffered from the strongest case of gender dysphoria the expert had ever seen.

Although she initiated litigation on her own, Kosilek now is represented by a substantial legal team, led by Frances S. Cohen, and her case has received support through amicus briefs from civil liberties, prisoners’ rights, and LGBT organizations.