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Federal Court Dismisses Challenge to Religious Exemptions under Title IX

Posted on: January 15th, 2023 by Art Leonard No Comments

 

Title IX of the Education Amendments of 1972 prohibits educational programs or activities that receive federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex.  Title IX includes a provision exempting from this anti-discrimination rule any educational institution that “is controlled by a religious organization” with “religious tenets” inconsistent with complying with Title IX.

 

In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, a decision interpreting Title VII of the Civil Rights Act of 1964, that it is impossible to discriminate on the basis of sexual orientation or transgender status without discriminating “because of sex.”  In 2021, early in the Biden administration, the U.S. Department of Education announced that it would apply Bostock’s reasoning to interpret Title IX, and would accept complaints of discrimination from students of educational institutions that are subject to Title IX because they receive federal funds.  In 2020, the last year of the Trump administration, the Education Department adopted a regulation making it easier for religious schools to benefit from the exemption language in Title IX.  Prior to these new regulations, schools that wanted to claim the exemption to avoid DoE investigations had to file a written request to DoE to be determined to qualify for the exemption.  The 2020 regulations made such written applications optional, and said that religious educational institutions could raise the exemption to get an investigation dismissed without having made such a written request.

 

Responding to these developments, an organization called the Religious Exemption Accountability Project (REAP) was formed to bring a lawsuit on behalf of LGBTQ people who have discrimination claims against religious schools, seeking a declaration that the statutory exemption is unconstitutional and that the 2020 Trump administration regulation violates the Administrative Procedure Act.  The lawsuit against the Department of Education and the Assistant Secretary for Civil Rights, which was filed in the U.S. District Court in Oregon in March 2021, was ultimately expanded to include claims by forty LGBTQ+ individuals.  The Council for Christian Colleges & Universities and some other organizations intervened to defend the exemptions that they enjoy under Title IX.

 

The essence of REAP’s claim is that it is unconstitutional for the government to provide funding to religious colleges and universities that discriminate on the basis of sexual orientation or gender identity.

 

On January 12, 2023, U.S. District Judge Ann Aiken granted a motion by the defendants and the intervenors to dismiss the lawsuit.  Hunter v. U.S. Department of Education, 2023 WL 172199, 2023 U.S. Dist. LEXIS 5745 (D. Ore., 1/12/23).

 

Although Judge Aiken rejected the defendants’ argument that the plaintiffs lacked standing to bring their constitutional claims against DoE, which enforces Title IX, she accepted the defendants’ argument that the plaintiffs lack standing to assert their Administrative Procedure Act claim.

 

More to the point, however, Judge Aiken found that the Supreme Court has upheld statutory exemptions from compliance with federal laws by religious organizations, virtually foreclosing the Equal Protection and First Amendment claims asserted by the plaintiffs.  “Here, Plaintiffs have provided voluminous allegations going toward the element of disparate impact – the first hurdle to mounting an equal protection claim,” wrote Judge Aiken.  “However, Plaintiffs have submitted no allegations of discriminatory motivation on the part of those enacting the religious exemption.”

 

This is significant because the Supreme Court has held that the Equal Protection requirement extends only to intentional discrimination by the government.  “To the contrary,” wrote Aiken, “Plaintiffs argue that when Congress enacted Title IX [in 1972], protections against sexual and gender minorities – were ‘of no concern.’”

 

“Plaintiffs provide no evidence and supply no allegations … for the Court to consider and evaluate whether Congress was motivated in part by a discriminatory purpose when it enacted the religious exemption.  The Court cannot conclude that Plaintiffs’ assertion that ‘Congress enacted the religious exemption to permit discrimination based on sex, sexual orientation, and gender identity’ is sufficient.”  She deemed such statements to be “conclusory” and “therefore not entitled to an assumption of truth.”

 

The judge pointed out that the Ninth Circuit Court of Appeals, whose jurisdiction covers Oregon, has ruled that statutes that are alleged to discriminate based on sexual orientation or gender identity are subject to “heightened scrutiny,” which means that the challenge will fail if the statute is found to “serve important government objectives” and “the discriminatory means employed are substantially related to the achievement of those objectives.”

 

“Plaintiffs have not alleged how the religious exemption fails intermediate scrutiny,” wrote Judge Aiken.  “Defendants point out that the Ninth Circuit has recognized ‘that free exercise of religion and conscience is undoubtedly, fundamentally important.’  Exempting religious controlled educational institutions from Title IX – and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization — is substantially related to the government’s objective of accommodating religious exercise.”

 

The judge concluded that the plaintiffs’ substantive due process claim was too vague, commenting that “plaintiffs invoke only a vague reference to ‘due process’ violations, and do not set forth the elements of a substantive due process claim or facts supporting such a claim.”

 

Perhaps the strongest arguments for the plaintiffs would be their Establishment Clause argument – that granting the exemption shows government favoritism for religions that discriminate on the basis of sex, sexual orientation, or gender identity, but the court found this argument to be foreclosed by the Supreme Court’s decisions upholding various religious exemptions for the purpose of accommodating an employer’s religious free exercise, including a provision in Title VII that exempts religious employers from the statute’s general prohibition on employment discrimination on the basis of religion.

 

The court concluded that the plaintiffs had not identified “legal authority that would distinguish this case from the facts and law at issue” in the Title VII cases.  Furthermore, she wrote, “Though Plaintiffs have much to say about Defendants [implementing the exclusion provision], Plaintiffs have failed to demonstrate any impermissible purpose Congress had in enacting the religious exemption,” especially in light of the Supreme Court’s decisions upholding religious exemptions under other statutes.  Indeed, the court found, by exempting religious schools from Title IX, Congress could be said to be avoiding “excessive entanglement” between the government and religion by eliminating DoE investigations of discrimination claims against religious schools.

 

The court also rejected the plaintiffs’ argument that the religious school exemption somehow violated the First Amendment free speech rights of students by creating a “chilling effect” on student speech.  She found that the statute “contains no reference to speech or viewpoint…  Plaintiffs’ allegation that Defendants lack a compelling governmental interest in ‘funding private educational institutions that restrict First Amendment rights…’ asserts that it is the ‘institutions that restrict’ Plaintiffs’ rights.  In so alleging,” she continued, “Plaintiffs fail to supply any facts connecting Defendants’ provision of ‘funding’ to educational institutions with a free speech violation.  As such, Plaintiffs have not pled ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

 

Finally, the court rejected the plaintiffs’ argument that the religious exemption violated their own right to free exercise of their religious beliefs in violation of the Religious Freedom Restoration Act.  “The text of RFRA is clear that government granting exemptions does not constitute a violation, unless impermissible under Establishment Clause principles,” she wrote.

 

REAP must now decide whether to appeal this ruling to the Ninth Circuit.  In light of the Ninth Circuit precedents on which the court relied, winning an appeal is likely to be a long shot.

 

Judge Aiken was appointed to the district court by President Bill Clinton in 1998.

Federal Court Says West Virginia Can Bar Transgender Girls from Girls’ Sports Teams

Posted on: January 9th, 2023 by Art Leonard No Comments

A federal judge ruled on January 5 that a West Virginia law forbidding transgender girls from competing on girls’ scholastic sports teams does not violate the constitution or the federal law banning sex discrimination by educational institutions.   B.P.J. v. West Virginia State Board of Education, 2023 WL 111875, 2023 U.S. Dist. LEXIS 1820 (S.D.W.Va., Jan. 5, 2023).

West Virginia enacted the “Save Women’s Sports Bill” in 2021.  The bill says that “inherent differences” between “biological males and females” justify having separate athletic teams for “biological males” and “biological females,” and that regardless of gender identity, for purposes of sports competition transgender females are biological males.

Becky, the plaintiff in B.P.J. v. West Virginia Board of Education, is now eleven years old, She was identified as male at birth, but “began expressing her female gender identity when she was three years old,” according to the complaint filed on her behalf by Lambda Legal and the American Civil Liberties Union.  “By the end of third grade, B.P.J. expressed herself fully – both at home and otherwise – as a girl,” wrote U.S. District Judge Joseph R. Goodwin.  She was diagnosed with gender dysphoria in 2019 and began taking puberty blocking medications at the first signs of puberty, so she has “not undergone endogenous male puberty,” wrote the judge.

When she was preparing to enter middle school, she wanted to try out for the girls’ cross-country and track teams.  Her mother asked the school to let her participate, but they told her that it would depend on what happened with the “Save Women’s Sports Bill,” which was then being considered by the state legislature.  When the bill passed, B.P.J. was informed that she would not be permitted to try out for the girls’ team.  She filed her lawsuit on May 26, 2021, claiming a violation of Equal Protection under the 14th Amendment and of Title IX of the Education Amendments of 1972 which bans sex discrimination.

She immediately sought a preliminary injunction so she could try out for the team while the case was pending.  The decision whether to grant a preliminary injunction requires the court to determine whether Becky had a likelihood of success on the merits of her “as-applied” challenge to the law.  Judge Goodwin granted the preliminary injunction, but shortly thereafter granted a motion by a cisgender female college athlete, represented by Alliance Defending Freedom (ADF), to intervene to defend the law from the perspective of a “biological woman” who might have to compete with transgender “biological men.”

Despite issuing the preliminary injunction, which allowed B.P.J. to try out for the girls’ team for the 2021-22 season, Judge Goodwin changed his mind about the merits, ruling for the state and the intervenor on January 5.

Before explaining his ruling, Judge Goodwin noted that B.P.J. was not arguing that the West Virginia law was unconstitutional under the “animus” doctrine, which holds that a legislature cannot pass a law that discriminates against a disfavored group out of animus against that group.  She also was not challenging a policy of having separate teams for boys and girls.  Instead, she was arguing that she was “similarly situated” to cisgender girls for all relevant purposes and thus should be entitled to be treated the same as them play women’s sports.

Judge Goodwin found that the law should be tested under the “intermediate scrutiny” standard that some courts have adopted to evaluate transgender discrimination claims.  Under this standard, the state can successfully defend a discriminatory law by showing that it significantly advances an important state interest.  He treated the issue before the court as whether the state could define sex as “biological sex” and treat B.P.J.. as male for purposes of sports competition.

“Whether a person has male or female sex chromosomes determines many of the physical characteristics relevant to athletic performance,” wrote Goodwin.  “While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes.  This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.  Given B.P.J.’s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females.”

Although he conceded that by taking puberty blockers, B.P.J. may have avoided the physical advantage that “biological males,” on average, enjoy, he wrote that “other transgender girls may not take those medications” for a variety of reasons, including realizing their female gender identity after going through some or all of puberty or having difficulty in accessing the treatment.  “And,” he wrote, “as evidenced by the thousands of pages filed by the parties in this case, there is much debate over whether and to what extent hormone therapies after puberty can reduce a transgender girl’s athletic advantage over cisgender girls.”  Indeed, he found that “the social, medical, and physical transition of each transgender person is unique” but “the fact is… that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males.”

The oddity here, is that Goodwin’s analysis treats this “as-applied” challenge as if it is a “facial challenge.”  The question B.P.J. sought to pose is whether it violated her rights to apply a categorical exclusion of all “biological males” to her, rather than to have a policy of treating each transitioning person as unique to be evaluated based on their individual history.  Because she identified as female very early, took puberty blocking medications, and has not gone through male puberty, she argues that in terms of physical capabilities, she is more like a cisgender girls of her age than a biological boy of her age.

But the judge was convinced by ADF’s argument on behalf of the cisgender intervenor, who asserted that “some boys run slower than the average girl and some boys have circulating testosterone levels similar to the average girl because of medical conditions or medical interventions,” but B.P.J. has not argued that those boys should be allowed to play on girls’ teams.  “This is inconsistent with her argument that the availability of hormone therapies makes transgender girls similarly situated to cisgender girls,” wrote Goodwin.

“In fact,” he wrote, “after reviewing all of the evidence in the record, including B.P.J.’s telling responses to requests for admission, it appears that B.P.J. really argued that transgender girls are similarly situated to cisgender girls for purposes of athletics at the moment they verbalize their transgender status, regardless of their hormone levels.”  The lack of an actual quotation of a statement by B.P.J. to this effect in the court’s opinion causes one to doubt that she was making such an argument, however.

But Goodwin concluded that “the legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females.” As such, he decided that it survives the heightened scrutiny test.

Turning to Title IX, Goodwin reached the same result.  “There is no serious debate that Title IX’s endorsement of sex separation in sports refers to biological sex,” he wrote.  Since he had already found in his Equal Protection analysis that “transgender girls are biologically male” and thus, on average, advantaged over cisgender girls in athletic competition, he found that the West Virginia policy was fully consistent with Congress’s intent in Title IX to afford equal opportunity for female students to compete in scholastic athletics.

“I have no doubt that H.B. 3393 aimed to politicize participation in school athletics for transgender students,” wrote the judge.  “Nevertheless, there is not a sufficient record of legislative animus.” In other words, he concluded that the law was not shown by evidence to be the product of bias against transgender girls, but rather was motivated by the legislature’s desire to protect cisgender girls from what the legislature considered to be unfair competition from boys.

An appeal of Judge Goodwin’s ruling would go to the U.S. Court of Appeals for the 4th Circuit, which has yet to weigh in on this issue.

Judge Goodwin was appointed by President Bill Clinton in 1995.

Eleventh Circuit En Banc Holds Transgender Boy Not Entitled to Use Boys’ Restroom at Florida High School

Posted on: January 1st, 2023 by Art Leonard No Comments

Ruling in Adams v. School Board of St. Johns County, Florida, 2022 WL 18003879, 2022 U.S. App. LEXIS 35962 (Dec. 30, 2022), a case that could have been dismissed as moot if U.S. District Judge Timothy Corrigan (M.D. Fla.) had not awarded $1,000 in damages to Drew Adams in 2018, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, voted 7-4 to reverse the district court and two vacated 2-1 opinions by a three-judge panel and hold that denying Adams, a transgender boy, access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972.  The 11th Circuit’s ruling makes a binding precedent for the federal courts in Florida, Alabama and Georgia.

All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights.  The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented.  The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting.  The only Republican appointee to vote in favor of Drew Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.

Circuit Judge Barbara Lagoa’s opinion for the court parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the 4th Circuit (Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir.  2020) and the 7th Circuit (Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F. 3d 1034 (7th Cir. 2017).  Lambda Legal, which is representing Drew Adams, has a difficult strategic decision to make, since the split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.

Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age.  When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident for some time until two girls complained to the school administration.  No boys had ever complained about Adams using the boys’ restrooms.  Adams was then instructed that the only restrooms he could use were single-user gender neutral restrooms or the girls’ restrooms.

The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistently with their gender identity except for the use of single-sex facilities.  As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district.  Thus, Adams, who enrolled in the 4th grade, would be treated as a girl for these purposes, and the district restricted the use of restrooms – the point of contention in this case – on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.

Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male.  But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.

During the trial, it was established that if a student who was identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male.  Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but was actually based on the sex identified on legal documents at the time they enrolled in the school district.  And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia.  There was also unrebutted expert testimony that Adams should be considered a biological male.

Adams filed suit in June 2017 in the Middle District of Florida.  At the time, he was a “rising junior” at Nease.  The trial was held in December 2018, resulting in Judge Corrigan’s 2018 decision, 318 F. Supp. 3rd 1293.  Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights.  By then, case law in the 11th Circuit had long since recognized – in Glenn v. Brumby, 663 F.3d. 1312 (2011), a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.”  The district judge concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys.  The judge concluded based on the trial record that Adams was a boy who was entitled to use facilities intended for boys.  Judge Corrigan also found a violation of Title IX, rejecting the school district’s argument that Title IX regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful.  He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school and awarded him $1,000 in damages.  The district promptly appealed to the 11th Circuit.

A three-judge panel voted 2-1 in August 2020, 968 F.3d 1286, to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds.  The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling.

In a July 2021 decision, again 2-1, 3 F.4th 1299, the same panel affirmed Judge Corrigan’s ruling but only on constitutional grounds, with the majority apparently hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity.  But Pryor blocked the mandate again, and a majority of the active judges on the 11th Circuit voted to vacate the panel decisions and reconsider the case by the full court, which then consisted of 12 judges.  Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an eleven-judge bench convened to reconsider the case.

As Adams was a “rising junior” when he filed this lawsuit in June 2017, he was no longer a student at Nease High School when the en banc case was argued, and the issue of the injunction is effectively moot.   Judge Corrigan’s 2018 decision had limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender students and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students.  However, since the judge awarded Adams damages, the school district’s appeal is not moot.

Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.”  The dissenting opinions point out that this is not really the question before the court, because the school district’s policy is based on sex as identified on enrollment papers, not “biological sex identified at birth,” and, more fundamentally, Adams is not challenging the right of the school district to maintain single-sex multi-user bathrooms.  Rather, he is arguing that as a transgender boy, recognized as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy.  Adams, in his state of transition, claims to be entitled to be treated the same as cisgender boys.

The underlying basis of Judge Lagoa’s opinion, of course, is that it is an article of faith among most Republican conservatives — the “party line,” as it were – that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician.  This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using the surname “Adams.”  Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissenting opinion, refers to Adams by pronouns consistent with his gender identity.

As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly-situated people.  As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom.  The majority of the court holds that there is no discrimination on the basis of sex and thus no equal protection violation.  They also reject a a disparate impact theory, observing that equal protection is limited to intentional discrimination.  They do accept, based on 11th Circuit precedent, that if there was discrimination, it would be subject to “heightened scrutiny,” but they find that the school district’s policy would survive that test based on the district’s concern for the privacy interests of the cisgender boys who don’t want a “biological girl” present in their bathrooms.  They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also the contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases, such as Grimm and Whitaker.

Turning to Title IX, the court rejects the three-judge panel’s application of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to Title IX.  In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964.  This was because, the Court ruled, it is impossible to discriminate because of transgender status without discriminating because of sex.  The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, such asTitle IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.

It is true that in the Bostock decision, Justice Neil Gorsuch, writing for the Court, asserted that the Court was deciding only the issue before it – whether a person discharged because they are gay or transgender can bring a discrimination claim under Title VII – and was not deciding anything about bathrooms or other statutes.  But the logic of that decision has struck many lower federal courts, as well as state courts interpreting their own civil rights laws – as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination.  The dissenters note and cite the relevant cases.

Judge Lagoa also found that because Title IX is a spending clause case (i.e., a case enacted by Congress to place conditions on the receipt of federal funding by educational institutions), the school district would have to have been on notice that accepting federal funding would obligate it to provide restroom access according to gender identity to transgender students, and the court found that this requirement was not satisfied, thus insulating the school district from Adams’s damage claim.

In addition to writing the opinion for the court, Judge Lagoa wrote a separate concurring opinion to focus on an issue not properly before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition.  This separate opinion is totally unwarranted and inappropriate, first because the judge already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.

The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly.  Judge Wilson emphasizes that the court’s narrow view of “biological sex” fails to take account of knowledge about divergent sexual identities, being so crudely reductionist that it creates all kinds of interpretive problems.  How would the school district deal with an “intersex” student, for example?  Judge Pryor’s dissent, the lengthiest, picks up from the detailed panel opinions by Judge Martin and points out the blatant fallacies strewn through Judge Lagoa’s opinion.

Alliance Defending Freedom Loses Appeal in Transgender High School Athletics Case

Posted on: December 19th, 2022 by Art Leonard No Comments

A unanimous three-judge panel of the New York City-based U.S. Court of Appeals for the 2nd Circuit has rejected an appeal by the conservative religious litigation group Alliance Defending Freedom (ADF) from a ruling by Senior U.S. District Judge Robert N. Chatigny, who last year had rejected a challenge to the Connecticut Interscholastic Athletic Conference (CIAC) policy of allowing transgender students to participate in high school athletic competitions consistent with their gender identity.

The December 16 opinion for the 2nd Circuit panel in Soule v. Connecticut Association of Schools, 2022 U.S. App. LEXIS 34791, 2022 WL 17724715, by Judge Denny Chin found in agreement with Judge Chatigny that the plaintiffs (four cisgender women who competed on their high school track teams in CIAC-sponsored competition) lacked standing for the injunctive relief they were seeking, and that their claim for damages was barred because the defendants were not on notice when they accepted federal funding that their transgender participation policy would violate Title IX of the Education Amendments of 1972.

Indeed, the court found that Title IX most likely has the opposite effect, requiring schools to allow transgender students to compete consistent with their gender identity.  ADF, claiming in a press release that the court “got it wrong” and that it was discriminatory for girls to compete against “males” in athletics, announced that it was considering “all options”, which could include a possible appeal, either requesting n banc review by the 2nd Circuit or requesting the Supreme Court to hear the case. (ADF routinely calls transgender girls “boys” or “males” in its activities attacking affirmative transgender rights policies.)

The plaintiffs – Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti – were high school track competitors who claimed that allowing two transgender girls – Andraya Yearwood and Terry Miller – to compete with them in CIAC-sponsored matches unfairly discriminated against plaintiffs on the basis of their sex.  Yearwood and Miller finished ahead of each of the plaintiffs in various track events during 2019 competition, although there were also events in which one or more of the plaintiffs finished ahead of the transgender girls.

The plaintiffs claimed that the CIAC policy violates Title IX, which forbids schools that receive federal funding from denying “equal educational opportunity on the basis of sex.”  Title IX provided the impetus for school programs to significantly increase opportunities for girls to participate in athletics since it was passed in 1972.  More recently, it has been interpreted by many (but not all) federal courts to prohibit discrimination because of gender identity.  This interpretation was bolstered in June 2020 when the U.S. Supreme Court ruled in Bostock v. Clayton County, 140 S. Ct. 1731, that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” extends to claims of discrimination because of “transgender status.”  Federal courts have generally looked to Title VII interpretations of “discrimination because of sex” when interpreting Title IX, despite slight variations in the wording of the statutes (“because of sex” versus “on the basis of sex”).

The plaintiffs alleged that the CIAC policy “is now regularly resulting in boys displacing girls in competitive track events in Connecticut,” that “students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born male.”  They claimed a “direct violation” of Title IX.

But all the plaintiffs were able to compete, and in the entire state of Connecticut there were only two transgender girls with whom they were competing.  Furthermore, by the time their suit was filed and Judge Chatigny ruled on the defendants’ motions to dismiss the case, both of the transgender girls (who were permitted to intervene as defendants represented by the ACLU) had graduated and there were no transgender girls participating in CIAC-sponsored meets.  The plaintiffs had asked the court to order the CIAC to bar CIAC from enforcing its policy and to delete the transgender girls from the records of the matches in which they had competed, which would elevate one or more of the plaintiffs to higher standing in some of those matches.

The Connecticut Commission on Human Rights and Opportunities also intervened as a defendant in support of the CIAC policy.  Connecticut’s human rights law forbids gender identity discrimination.

Judge Chatigny concluded that the plaintiffs lacked standing for the relief they were seeking.  Some of their claims were deemed mooted by the passage of time and subsequent events.  By the time the motion to be dismiss was decided, the plaintiffs, who were near graduation from high school, were no longer affected by the policy, so lacked standing to seek an injunction against its enforcement.  Also, the plaintiffs alleged that their athletic records were crucial to their ability to gain college admissions and subsequent employment, but by the time the Court of Appeals was considering this appeal, the plaintiffs had all been admitted to college and the impact of their final standing in CIAC competitions on their employment opportunities was deemed too speculative to support a claim of actual injury, which is necessary for the relief they were seeking.  The Court of Appeals agreed with Judge Chatigny and affirmed the denial of injunctive relief.

As to the plaintiffs’ damage claims, under a 1981 Supreme Court precedent, Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, a damage claim under a statute that imposes a federal non-discrimination requirement on a defendant because the defendant is the recipient of federal funds may not be made unless the funding recipient was on notice when they decided to accept the funding about the specific non-discrimination obligation to which they were subjecting themselves by accepting the money.

The burden is on the plaintiff to show that defendants were “on notice” that by letting transgender girls compete, they were violating the Title IX rights of cisgender girls.  “We conclude that only the opposite has been shown here,” wrote Judge Chin for the Court of Appeals.

The judge first noted that “guidance” from the Department of Education (DOE) under Title IX “has fluctuated with the changes in presidential administrations.”  In 2016, during the Obama Administration, DOE advised schools, based on the Equal Employment Opportunity’s decision that Title VII covered gender identity discrimination, that schools could not discriminate against transgender students, and this required allowing them to participate in school athletics.  In 2017, with the Trump Administration, that guidance was withdrawn by DOE on the ground that it needed to be “considered more completely.”  In 2020, DOE sent the CIAC a letter of “impending enforcement action” reacting to publicity about this lawsuit, interpreting Title IX to require that gender-specific sports teams be separated based on “biological sex,” but that was withdrawn by the new Biden Administration in February 2021 before any action was taken by DOE against the CIAC.

Perhaps more significantly, Judge Chin pointed out, although this precise issue has not yet been decided by other courts of appeals in the sports context, there are have been numerous court of appeals decisions in other circuits, many of which were denied review by the Supreme Court, holding that schools covered by Title IX cannot discriminate against transgender students, and cases holding that allowing transgender students to use restrooms consistent with their gender identity do not violate the Title IX rights of cisgender students.

“Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender specific sports teams,” wrote Chin, “such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the Policy violates Title IX.”  The court also rejected ADF’s argument that the plaintiffs were entitled to an exception from the Pennhurst “notice” rule because defendants “intentionally” discriminated against the plaintiffs, commenting that “the Policy could not be considered ‘intentional conduct that violates the clear terms of’ Title IX, given Bostock and the decisions from other Courts of Appeals.  Thus the ‘intentional conduct exception is inapplicable here.’”

In its press release denouncing the decision, ADF pointed out that 18 states have now passed laws requiring that participation in sex-specific athletic competition must be based on “biological sex” as identified at birth.  However, if Title IX protects transgender girls from being excluded from participating in such sports, the state laws would be preempted by federal law.  Although the 2nd Circuit decision does not directly rule on the merits of that question, Judge Chin’s ruling strongly suggests that attempts by schools to exclude transgender girls could subject the schools to Title IX liability.

Senior Judge Chatigny was appointed by President Bill Clinton.  Judge Chin was appointed to the 2nd Circuit Court of Appeals by President Barack Obama.

 

 

8th Circuit Greenlights Anti-Trans Discrimination by Catholic Health Care Providers and Employers

Posted on: December 14th, 2022 by Art Leonard No Comments

A three-judge panel of the 8th Circuit Court of Appeals issued a decision on December 9 upholding an injunction barring the U.S. Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing against Catholic institutions a rule that forbids health care providers from denying gender-affirming care to transgender individuals and that requires employers to cover gender-affirming care in their employee benefit plans.

 

The ruling upheld an injunction issued on January 19, 2021, by Chief U.S. District Judge Peter D. Welte of the District of North Dakota.  Judge Welte was ruling in a lawsuit brought by The Religious Sisters of Mercy (RSM), RSM’s health care center, and various other North Dakota plaintiffs, and by Catholic Charities of North Dakota, the Catholic Medical Association, and the State of North Dakota.  The injunction protects the plaintiffs and their members from any enforcement action by HHS or the EEOC, but does not directly affect individuals who bring lawsuits for denial of care or coverage against the plaintiffs.  The court’s ruling is based on its interpretation of the Religious Freedom Restoration Act (RFRA), which provides a defense against the government’s enforcement of federal laws that substantially burden free exercise of religion.

 

Although the injunctive relief appears to be focused primarily on North Dakota, the co-plaintiff Catholic Medical Association’s members include Catholic hospitals and health-care providers in thousands of places around the country, so the practical effect may be to allow all of them to deny provision of gender-affirming care or its financing.

 

The litigation dates back to the final years of the Obama Administration, when HHS issued a Rule interpreting the anti-discrimination provision of the Affordable Care Act (ACA), Section 1557, to forbid discrimination by health care entities receiving federal money from discrimination on the basis of sexual stereotypes or gender identity, after the EEOC had interpreted Title VII of the Civil Rights Act of 1964 to ban employment discrimination based on sexual stereotyping or gender identity.  Courts have generally follow interpretations of Title VII when they are interpreting Title IX of the Education Amendments of 1972, which forbids educational institutions from discrimination because of sex, and which is incorporated by reference into Section 1557 of the ACA.

 

The Obama Administration Rule was issued in 2016, shortly before Donald Trump was elected.  The Trump Administration advised courts where litigation was then pending challenging the 2016 rule that it would not enforce the contested provisions while it considered replacing them.  Litigation in other parts of the country resulted in injunctions being issued by some courts against the Obama Administration Rule, but when the Trump Administration issued its new rule in June 2020, deleting protection against gender identity discrimination, some other federal courts issued injunctions against that rule.  In the meantime, individuals suing for discrimination by employers (including states that provide health insurance for their employees) won significant victories under Section 1557, which the Supreme Court has interpreted to provide a “private right of action.” The overall situation regarding these rules and their application is thus quite messy.

 

What is at stake for the plaintiffs in this and several similar cases brought  by religious plaintiffs pending in other parts of the country is the possibility of being disqualified from participating in the Medicaid and Medicare programs, being fined, or being subjected to court orders in lawsuits by the government, if a court finds that they have violated the ACA’s antidiscrimination requirements.

 

The government argued that the lawsuit in North Dakota, which was aimed at attacking enforcement of the 2016 Rule, should be dismissed as moot, because the 2020 Trump Administration Rule revoked the 2016 rule.  But the plaintiffs prevailed on their argument that they were attacking the interpretation of Section 1557 and Title VII – as to which the EEOC during the Trump Administration did not back away from its interpretation of Title VII to ban gender identity discrimination.  The EEOC’s position was vindicated around the time the Trump Administration issued its 2020 Rule when the Supreme Court ruled in Bostock v. Clayton County that Title VII encompasses discrimination because of “transgender status.”

 

The Supreme Court ruling was followed five months later by the election of Joe Biden, who then took office in January 2021 and directed his administration to follow the Bostock decision in enforcing federal sex discrimination laws.  HHS sent notifications to health care entities covered by the ACA later in 2021, announcing that it was interpreting Section 1557 to cover gender identity claims, and that refusals to perform gender affirming care to transgender individuals could result in liability under that statute.

 

The Obama, Trump, and Biden Administration interpretations of Section 1557 also differed over whether the exemption of religious educational institutions from compliance with Title IX should be considered as part of Title IX’s inclusion by reference in Section 1557.  As one would expect, during the Obama Administration HHS said that the religious educational institution exemption did not apply to Section 1557, but the Trump Administration took the contrary view, and some courts ruling on challenges to the gender identity rule have sided with the Trump Administration on this.

 

In the Bostock decision, Justice Neil Gorsuch wrote for the Court that it was ruling only on the question whether discrimination because of sexual orientation or transgender status violates Title VII, and not on how to interpret other federal statutes. The three cases joined in appeal in Bostock v. Clayton County all involved plaintiffs who claimed that they were discharged because of their sexual orientation or gender identity, and the Court ruled that they could sue under Title VII, reversing contrary rulings by the 11th Circuit (sexual orientation) and affirming rulings by the 2nd Circuit (sexual orientation) and the 6th Circuit (gender identity).  The Trump Administration sought to give Bostock a narrow interpretation and argued that it did not affect their new Rule interpreting Section 1557 of the ACA.  Justice Gorsuch also referred to the Religious Freedom Restoration Act (RFRA) as a “super statute” that could be relevant to religious freedom claims asserted by employers in Title VII cases.

 

This past summer, HHS published new proposed regulations that would basically restore and extend the Obama Administration’s 2016 regulations and make clear that gender identity discrimination is forbidden under the ACA and that refusal of health care providers and insurers to provide and cover such care violates Section 1557.

 

The case of Religious Sisters of Mercy v. Xavier Becerra (Secretary of HHS), now focuses on whether the plaintiffs are protected by RFRA from any enforcement action by HHS or the EEOC.  The district judge answered that question affirmatively in 2021, based on the guidelines and notifications sent out by HHS stating that they would enforce the prohibition on gender identity discrimination relying on the reasoning of the Bostock case.  Although HHS and EEOC have not yet actively pursued Catholic hospitals or other Catholic institutions, the plaintiffs persuaded the district court, and ultimately the court of appeals, that the threat of enforcement was sufficient to give the plaintiffs standing to bring this lawsuit and seek injunctive relief.

 

Most of the December 9 opinion by Chief Judge Lavenski Smith of the 8th Circuit is focused on the issue of standing.  The court accepts that the plaintiffs have a good defense against any enforcement action by virtue of RFRA, which places the burden on the government to show that it has a compelling interest in enforcing a challenged law that substantially burdens free exercise of religion, and that enforcing the law is the least restrictive alternative to achieving that interest.  Smith’s opinion supports Judge Welte’s contention that if the government has a compelling interest in making sure that transgender people can get gender-affirming care, it can achieve that without forcing Catholic institutions to violate their religious beliefs by compelling them to perform the procedures or finance them.

 

Chief Judge Welte was appointed by President Donald J. Trump.  Chief Judge Smith was appointed by President George W. Bush.  The other judges on the three judge panel are Judge Raymond Grueder, also appointed by Bush, and Judge Jonathan Kobes, a Trump appointee.  The 8th Circuit Court of Appeals is dominated by Republican appointees – ten of the eleven active judges on the court.

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Federal Appeals Court Says University Professor May Have 1st Amendment Right to Misgender Transgender Students

Posted on: March 29th, 2021 by Art Leonard No Comments

Nicholas Meriwether, a philosophy professor at Shawnee State University in Portsmouth, Ohio, was very concerned in 2016 when the University announced that its ban on gender identity discrimination would require professors to respect students’ gender identity by using appropriate pronouns to refer to them.  Meriwether, a devout Christian who rejects the idea that people can have a different gender identity than their genetic sex, protested to his department chair, who ridiculed his religious beliefs and told him to comply with the rule.  Now a federal appeals court panel has ruled that the Meriwether could have a 1st Amendment right to insist on misgendering transgender students based on his religious beliefs.  Meriwether v. Hartop, 2021 WL 1149377, 2021 U.S. App. LEXIS 8876 (6th Cir., March 26, 2021).

According to his federal court complaint, Meriwether says that the department chair exhibited hostility toward him and his beliefs during their meeting, stating that “adherents to the Christian religion are primarily motivated out of fear”; “the Christian doctrines regarding hell are harmful and should not be taught”; “anyone who believes hell exists should not be allowed to teach these doctrines”; “faculty members who adhere to a certain religion should be banned from teaching courses regarding that religion”; and “the presence of religion in higher education is counterproductive” because “the purpose of higher education is to liberate students” and “religion oppresses students.”

Meriwether, who had taught at Shawnee for 35 years, confronted the issue up-close in January 2018 when he returned from a semester on sabbatical leave and discovered, undoubtedly to his chagrin, that there was a transgender woman in his class, who is identified in the litigation as “Doe.”  Meriwether, believing Doe to be male, addressed Doe as “sir” in response to a comment Doe made in class discussion.  After the class, Doe approached Meriwether and advised him that Doe was a woman and should be addressed accordingly.  Doe threatened to file a complaint against Meriwether if he did not address her as female.

This led ultimately to the University putting a disciplinary note and warning in Meriwether’s file when he failed to abide by instructions to consistently address Doe as a woman or to just to use her last name when calling on or referring to her.  He tried to restrain himself from addressing Doe incorrectly, but slipped up on occasion, quickly correcting himself.  He told one administrator that he would be willing to comply with the rule by referring to Doe consistently as female if he could put an explanatory statement in his course Syllabus setting forth his religious views, but he was told that would itself violate the anti-discrimination rule.

Doe filed at least two complaints with University administrators against Meriwether, leading to findings that he had created a hostile environment for Doe, which he tried to refute by claiming that Doe had participated actively and well in class discussion and earned a high grade in his course.  Meriwether appealed these rulings and claimed that when his union representative tried to explain Meriwether’s religious freedom argument to the University President, that official just laughed and refused to listen.

U.S. District Judge Susan J. Dlott referred the University’s motion to dismiss Meriwether’s 1st Amendment lawsuit to a Magistrate Judge, Karen L. Litkovitz, who issued a Report and Recommendation in 2019 concluding that the case should be dismissed, because Meriwether’s failure to comply with the University’s rule did not involve constitutionally protected speech.  In January 2020, Judge Dlott issued a brief opinion agreeing with Litkovitz’s recommendation and dismissing the case.  Meriwether, represented by Alliance Defending Freedom, a staunchly anti-LGBT religious litigation group, appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which reversed Judge Dlott’s ruling on March 26, reviving the lawsuit and sending it back to the District Court for trial.

Judge Dlott’s decision adopting Judge Litkovitz’s recommendation to dismiss the case was based heavily on Garcetti v. Ceballos, a 2006 Supreme Court ruling that held, by a vote of 5-4, that when government employees speak or write as part of their job, their speech is “government speech” that is not protected by the 1st Amendment.  As Justice Anthony Kennedy interpreted the Court’s free speech precedents, an individual is protected by the 1st Amendment’s freedom of speech when they are speaking as a citizen on a matter of public concern, but not when they are speaking as a government official.  The case concerned a prosecuting attorney who claimed to have suffered unconstitutional retaliation for an internal memo he wrote and some testimony he gave in a criminal court hearing that met with disapproval from his supervisors.  The Supreme Court held that neither his memo nor his testimony enjoyed 1st Amendment protection because he was speaking as part of his job as a government official.

In a dissent, Justice David Souter raised the specter of censorship of public university professors who are employed to engage in scholarship and teaching and who would theoretically be deprived of academic freedom under such a rule.  Justice Kennedy responded in his opinion by acknowledging the academic freedom concern and observing that the Court was not deciding that issue in the Garcetti case.  Lower federal courts have been divided about the impact of Garcetti in cases involving educators seeking 1st Amendment protection for their speech.

In her opinion, Judge Litkovitz found that Professor Meriwether’s use of inappropriate terminology to refer to Doe was not protected speech, relying in part upon the Garcetti reasoning, and Judge Dlott accepted her conclusion.  But the 6th Circuit panel (which included two judges appointed by President Donald J. Trump) decisively rejected that view.

Writing for the unanimous panel, Circuit Judge Amul Roger Thapar seized upon Justice Souter’s dissent and Justice Kennedy’s acknowledgement that academic freedom concerns could create an exception to the Garcetti rule and insisted that Professor Meriwether’s claim that the University violated his 1st Amendment rights by disciplining him for his use of words in dealing with Doe should not have been dismissed.

“Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors,” wrote Judge Thapar. “Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”  The court insisted that the words Meriwether used reflected his religiously-based beliefs about gender, and as spoken in the classroom were part of his teaching and were thus communicating his point of view about a hotly debated and controversial subject of public concern.  As such, they enjoy 1st Amendment protection under the free speech provision.

Furthermore, pointing out the hostility with which Meriwether’s department chair and the University president had responded to his religiously-based arguments, the court relied on the Supreme Court’s Masterpiece Cakeshop ruling to find that his right to free exercise of religion also came into play in this case.  If speech on an issue of public concern enjoys 1st Amendment protection, then the University’s disciplinary action of placing a warning letter in Meriwether’s personnel file and threatening him with more severe sanctions for future violations would be subject to “strict scrutiny,” which means the University and those officials named as individual defendants would have the burden to show that there is a compelling justification for their actions and that the “accommodations” that Meriwether had suggested would defeat the University’s attempt to achieve its compelling goal.

In this case, the University’s justification lies in Title IX of the Education Amendments of 1972, which provides that schools receiving federal funding may not deprive any individual of equal educational opportunity because of sex.  In 2016, the Obama Administration informed the educational community that it interpreted that language to ban gender identity discrimination, and published a guidance document that instructed, among other things, that transgender students have a right to be treated consistent with their gender identity, including appropriate use of language in speaking to and about them.

The University argued that the 6th Circuit’s decision in the Harris Funeral Homes case, which later became part of the Supreme Court’s 2020 Bostock ruling, had confirmed its compelling interest in preventing discrimination against transgender students.  In that case, the 6th Circuit, and ultimately the Supreme Court, held that the ban on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 applied to an employer’s discharge of a transgender employee when she announced her transition.

Judge Thapar rejected the argument.  “Harris does not resolve this case,” he insisted. “There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee’s transgender status.  The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees’ speech on matters of public concern . . . . [It] would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into ‘enclaves of totalitarianism.’”

Furthermore, he wrote, “a requirement that an employer not fire an employee for expressing a transgender identity is a far cry from what we have here—a requirement that a professor affirmatively change his speech to recognize a person’s transgender identity.”

“At this stage of the litigation,” wrote Thapar, “there is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school’s actions ‘mandate orthodoxy, not anti-discrimination,’ and ignore the fact that ‘[t]olerance is a two-way street.’”  He also rejected the argument that how Meriwether addressed Doe in the classroom deprived her of educational opportunity, pointing out Meriwether’s claim that Doe was an active participant in class discussion and earned a “high grade” in his course.

Thapar supported this view by noting that University President Jeffrey A. Bauer, in confirming the disciplinary decision, had conceded that Meriwether did not create a hostile environment for Doe, instead resting his decision on the assertion that Meriwether discriminated against Doe by addressing cisgender students consistent with their gender identity but not address Doe consistent with her gender identity.  Thus, Judge Thapar concluded, disciplining Doe was not necessary to effectuate Title IX’s policy of protecting educational opportunity.

The court’s opinion lacks any kind of discussion or understanding concerning the concept of “misgendering” and the harm that inflicts on transgender individuals.  In the court’s view, the victim here is Professor Meriwether, not Doe.  This reflects the same cavalier attitude towards misgendering recently displayed in a 5th Circuit decision denying a request by a transgender prisoner that she be referred to consistent with her gender identity in court papers, also treated dismissively by a Trump-appointed appeals court judge.  And it calls to mind a recent ruling by the 11th Circuit striking down on 1st Amendment free speech grounds an attempt by Florida municipalities to protect LGBT youth from the practice of conversion therapy, yet another opinion by a Trump-appointed judge.  The Trump Administration may technically be at an end, but it lives on in his appointment of a third of the active federal appeals court judges.

The only point on which the 6th Circuit panel affirmed Judge Dlott’s ruling was in her conclusion rejecting Meriwether’s argument that the University’s rule was too vague to meet Due Process standards.  The 6th Circuit panel found that Prof. Meriwether was clearly advised of the rule and was accorded Due Process, while finding fault with the lack of neutrality towards religion exhibited by his department chair and President Bauer.  The court ordered that Judge Dlott’s ruling dismissing the lawsuit be vacated, and that the case sent back to the district court for proceedings consistent with the 6th Circuit’s opinion.

 

 

Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

Posted on: February 20th, 2021 by Art Leonard No Comments

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity.  The School Board is appealing from an August 2020 decision by the 4th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems.  The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims.  But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX.  However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students.  Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”  This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review.  Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt.  While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up.  The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU.  Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

Michigan Claims Court Issues Split Ruling on State’s Public Accommodations Law

Posted on: December 13th, 2020 by Art Leonard No Comments

Michigan Court of Claims Judge Christopher M. Murray issued an opinion on December 7 in Rouch World v. Michigan Department of Civil Rights, Court of Claims Case No. 20-000145-MZ, holding that the state’s Elliot-Larsen Civil Rights Act (ELCRA), which, among other things, prohibits businesses from discriminating against customers because of their sex, cannot be interpreted by his court as banning sexual orientation discrimination, because the state’s Court of Appeals rejected the argument that sexual orientation discrimination is covered by the Act in a 1993 ruling.

On the other hand, finding that there is no Michigan court ruling on whether the ELCRA’s sex discrimination ban can be applied to discrimination against transgender people, Judge Murray followed the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 140 S. Ct. 1731, which interpreted the federal ban on sex discrimination in employment to apply to claims of discrimination based on transgender status.

Michigan Attorney General Dana Nessel announced that she would appeal Murray’s ruling as to sexual orientation discrimination, while the business that faces a gender identity discrimination claim announced that it would appeal that ruling.

Murray’s opinion concerned discrimination claims against two businesses.  Rouch World, an events venue that rents space for weddings and other celebrations, refused to book an event for a same-sex couple, citing the owners’ religious objections to same-sex marriages.  Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.

In both cases, the rejected customers filed complaints with MDCR, which began investigations pursuant to its Interpretative Statement 2018-1, which states that the ELCRA can be interpreted to cover such claims.  In both cases, the businesses subsequently filed suit in the Court of Claims, arguing that the Department does not have jurisdiction over sexual orientation and gender identity claims, and even if it did, that their religious objections privileged them to deny the services.  The plaintiffs asked the court to put an end to the investigations.

Judge Murray explained that the ELCRA does not define the word “sex” as used in the provision applicable to claims of discrimination by “a place of public accommodation,” which includes businesses selling goods or services to the public.  In 1993, the Michigan Court of Appeals ruled in Barbour v. Department of Social Services, 497 N.W. 2d 216, that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.”  That decision is binding on trial courts in Michigan.  Judge Murray explained that “whether Barbour’s reasoning is no longer valid in light of Bostock v. Clayton County, and cases containing similar reasoning, is a matter for the Court of Appeals, not this court.”  Consequently, Attorney General Nessel, herself an out lesbian who helped persuade the Department to issue Interpretative Statement 2018-1, will appeal this part of the ruling to the Court of Appeals.

On the other hand, Murray found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by the ELCRA.  Lacking such authority, Michigan courts will look to decisions concerning other statutes with similar language as well as federal rulings for interpretative guidance.  This brings the Bostock decision into play.

Significantly, the Michigan Supreme Court recently vacated a Michigan Court of Appeals ruling in a case under the ethnic intimidation statute for reconsideration in light of Bostock.  In that case, People v. Rogers, 331 Mich. App. 12, vacated, 950 N.W. 2d 48 (2020), the Court of Appeals ruled that the ethnic intimidation statute’s listing of sex does not cover hate crimes against transgender people.  The Michigan Supreme Court told the Court of Appeals to reconsider that ruling in light of Bostock, a clear signal that the Michigan court is prepared to treat the Bostock decision as a persuasive precedent for interpreting the state’s sex discrimination laws.

“Following the Bostock Court’s rationale,” wrote Murray, “if defendants determine that a  person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures.  Nothing in the ELCRA would preclude that action.”

The bottom line of Judge Murray’s decision is that the Department does not have jurisdiction of the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals decides to overrule its old Barbour decision, but that the Department does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client, at least so far as interpretation of the ELCRA goes.  Of course, the Supreme Court’s remand in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider Barbour in light of Bostock.

The court refrained from ruling on the religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.”  The question of federal constitutional religious exemptions from compliance with state or local anti-discrimination laws is now before the U.S. Supreme Court in Fulton v. City of Philadelphia, which was argued on November 4 and will be decided sometime in 2021.  It is likely that many state agencies and courts dealing with religious exemption claims by civil rights defendants may delay ruling on such claims until the Supreme Court rules in Fulton.

Judge Murray ended his opinion by stating, “This is not a final order as it does not resolve all of the pending issues in this case.”  This cryptic remark implies that Uprooted Electrolysis may not immediately appeal the court’s determination that the ELCRA applies to the transgender discrimination claim, since its religious exemption claim has not yet been ruled upon.  However, the declaration that the MDCR does not have jurisdiction over the sexual orientation claim against Rouch World seems final as to that complaint, so Attorney General Nessel may be able to appeal that ruling.