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Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

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

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Missouri Supreme Court Revives Sex Discrimination Law Suits by Gay and Transgender Plaintiffs

Posted on: March 2nd, 2019 by Art Leonard No Comments

The Missouri Supreme Court issued a pair of rulings on February 26, reversing circuit court dismissals of sex discrimination lawsuits by gay and transgender plaintiffs.  Lampley v. Missouri Commission on Human Rights, 2019 WL 925557, 2019 Mo. LEXIS 52; R.M.A. v. Blue Springs R-IV School District, 2019 WL 925511, 2019 Mo. LEXIS 54.  In both cases, the court was sharply split, and in neither opinion did the Court hold that sexual orientation or gender identity discrimination claims, as such, may be brought under the state’s Human Rights Law.  However, at least a majority of the seven judges agreed in both cases that being gay or transgender does not bar an individual from making a sex discrimination claim under the statute, which it least allows them to survive a motion to dismiss for failure to state a claim.

The decision is significant because Missouri is a conservative state that has not amended its Human Rights Act to ban discrimination because of sexual orientation or gender identity, and Missouri’s federal courts are in the 8th Circuit, where the federal court of appeals has not yet ruled on a pending appeal posing the question whether the federal Civil Rights Act’s ban on sex discrimination can be interpreted to cover such claims.

The first of the two decisions, Lampley v. Missouri Commission on Human Rights, involves discrimination claims by two employees of the Missouri Department of Social Services Child Support Enforcement Division.  Harold Lampley filed a discrimination charge with the Commission, checking off on the charge form that he was a victim of discrimination because of “sex” and “retaliation.”  A heterosexual co-worker of Lampley, Rene Frost, also filed a charge, claiming she suffered “retaliation” because of her association with Lampley.

In the narrative portion of his charge, Lampley stated that he is a gay man who does not exhibit the stereotypical attributes of how a male should appear and behave, as a result of which he was treated differently from “similarly situated co-workers” who were not gay and who exhibited “stereotypical male or female attributes.”  Lampley claimed he was subjected to harassment at work, and that in retaliation for his complaints, he was “grossly underscored” in a performance evaluation.

In her narrative, Frost described her close friendship with Lampley.  Frost had complained about a performance review, the result of which was publicly announced to her co-workers in a departure from practice, and after which she claimed the employer moved her desk away from Lampley and the other co-workers with whom she collaborated. She was told she and Lampley were not allowed to eat lunch together, as they customarily did.  She also claimed that, unlike other employees, both she and Lampley were docked for pay for the time they met with their union representative about these issues, and that she continued to be subjected to verbal abuse, threats about her performance review, and “other harassing behaviors” as a result of her friendly association with Lampley.

The Commission’s investigator decided that Lampley was really trying to assert a sexual orientation discrimination claim, and that Frost’s claim was really that she was discriminated against for associating with a gay person.  In both cases, the investigator determined that the Act did not cover these charges, and the Commission terminated its proceedings, stating that both claims did not involve a category of discrimination covered by the law. The cases were “administratively closed,” and the Commission did not issue either Lampley or Frost the usual “right to sue” notice that would authorize them to go to court.

Thus stymied, Lampley and Frost filed petitions with the circuit court for administrative review, or, alternatively, for a writ of mandamus – an order from the court to the Commission to issue them right-to-sue notices.  The circuit court granted the Commission’s motion for summary judgment, citing a 2015 Missouri Court of Appeals decision that stated that sexual orientation claims are not covered by the statute.

The Supreme Court judges were divided over how to characterize this case and whether the Supreme Court even had jurisdiction to decide it, finding procedural problems with the Lampley and Frost lawsuits, but ultimately a majority concluded that they could address these appeals on the merits.

As to that, three members of the seven-member court, joining in an opinion by Judge George W. Draper, III, concluded that it was appropriate to follow federal precedents stemming from the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), holding that the denial of a promotion to a female employee who was criticized as being too masculine in her dress and demeanor violated the rule against discrimination because of sex.  The Supreme Court accepted the argument that reliance on sex stereotypes in making personnel decisions was evidence of employment discrimination because of sex.

Turning to this case, Judge Draper wrote that it was wrong for the Commission to drop its investigation and close the case, because Lampley did not allege in his charge that he was a victim of sexual orientation discrimination.  Although he mentioned more than once in his narrative that he is a gay man, his claim was that he was a victim of sex discrimination because he did not exhibit stereotypical attributes of males.  Thus, he was entitled to an investigation of his claim, and similarly Frost was entitled to an investigation of her claim of retaliation against her based on her association with Lampley.  Draper emphasized that sexual orientation discrimination claims, as such, are not covered by the statute.  But he pointed to several opinions by federal courts, interpreting Title VII, that allowed gay plaintiffs to pursue sex discrimination claims using the sex stereotype theory.

Furthermore, wrote Draper, since the statutory time for investigation of a claim had long since expired, the appropriate remedy was for the circuit court to issue a writ of mandamus ordering the Commission to issue right-to-sue notices to Lampley and Frost so they could pursue their discrimination claims in the circuit court.

One member of the Supreme Court concurred, but on a narrower ground.  Judge Paul C. Wilson, who wrote the opinion for a majority of the court in the R.M.A. case, discussed below, wrote that this case “should be analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims covered by the MHRA,” which, he wrote, “they plainly do.”  However, he wrote, “the principal opinion does not stop there.  Instead, it proceeds to opine on whether ‘sex stereotyping,’ as discussed in the Title VII context in Price Waterhouse v. Hopkins, is a type of sex discrimination under the MHRA.”  But, referring to his opinion in R.M.A., Wilson argued that the MHRA “does not provide for ‘types’ of sex discrimination claims.”  Either a claimant is alleging sex discrimination or not.  If he or she is alleging sex discrimination, they are entitled to have their claims investigated and, ultimately, to present them to a court if they can’t be resolved by the Commission.

Judge Wilson would leave to a later stage in the litigation, when the matter is before the circuit court on the merits, the question whether the facts proven by the plaintiff in the lawsuit would amount to sex discrimination in violation of the law.  Thus, he saw the discussion of sex stereotypes as premature at this stage of the litigation.

Wilson agreed with Judge Draper’s opinion that the MHRA does not forbid sexual orientation discrimination as such.  His concurring vote, however, provided Draper with the majority to hold that the circuit court should not have granted summary judgment to the Commission, because Lampley was not claiming sexual orientation discrimination.

Chief Judge Zel Fischer agreed with Draper and Wilson that the state law does not forbid sexual orientation discrimination, but Fischer concluded for procedural reasons that the appeal should be dismissed.  Judge W. Brent Powell, in a separate dissent, while agreeing with Fischer that the court should dismiss the appeal on procedural grounds, said that otherwise the circuit court’s decision should be affirmed because “mandamus cannot be used to control the administrative agency’s executive director’s discretionary determination that Lampley’s and Frost’s complaints alleged discrimination based on sexual orientation rather than sex stereotyping.”  If that decision was reviewed under an “abuse of discretion” standard, wrote Powell, “the executive director did not abuse her discretion in closing Lampley’s and Frost’s complaints because the determination that the complaints alleged discrimination based on sexual orientation rather than sex stereotyping was not unreasonable, arbitrary, or clearly against the logic of the circumstances considering the allegations contained in the complaints.”

The footnotes of the opinions by Draper and Powell battle over how to characterize the narrative portions of the charges filed with the Commission.  Draper emphasizes that both Lampley and Frost claimed to be victims of sex discrimination because of sex stereotyping, while Powell emphasizes that Lampley’s extended narrative, not quoted in full in the plurality opinion, could clearly support a conclusion that he was the victim of sexual orientation discrimination, thus making the Commission’s conclusion rational and not arbitrary.

In the R.M.A. case, the teenage student filed suit claiming that the school’s refusal to let him use boys’ restrooms and locker rooms was discrimination because of sex.  The plaintiff’s claim to the Commission and Complaint in the Circuit Court stated that his “legal sex is male” and that by denying him “access to the boys’ restrooms and locker rooms,” the school discriminated against him in the use of a public accommodation “on the grounds of his sex.”

R.M.A. filed his charge with the Commission in October 2014, and the Commission issued him a right-to sue notice in July 2015.  He filed suit against the school district and board of education in October 2015.  The defendants move to dismiss the complaint on two grounds: that the Act does not cover gender identity discrimination, and that the public schools are not subject to the public accommodations provisions.  The circuit court granted the motion to dismiss in June 2016, “without explanation,” and R.M.A. appealed.

Writing for give members of the court, Judge Wilson, as noted above in his concurring opinion in the Lampley case, asserted that it was unnecessary for the court to deal with the question whether R.M.A. had a valid sex discrimination.  Since it was dealing with an appeal from a motion to dismiss, he wrote, the court should focus on what R.M.A. alleged in his Complaint.  There, he stated that he was legally a male, and that the school’s denial of his access to the boys’ facilities discriminated against him because of his sex.  To Wilson, this was straightforward.  R.M.A. was claiming sex discrimination, and denial of access to school facilities because of his sex.  At this stage of the litigation, that should be enough to survive a motion to dismiss, and it was not necessary to address the question whether gender identity discrimination claims can be brought under the statute, because R.M.A. made no such claim in his Complaint.  Furthermore, Wilson saw no merit to the argument that the school’s restroom and locker room facilities were not subject to the ban on sex discrimination in public accommodations under the MHRA.

One can easily imagine what Judge Powell thought about this.  In his vehement dissent, joined by Chief Judge Fischer, Powell insisted that the term “sex” as used in the Act could not be construed to allow gender identity discrimination claims, and he insisted that this is what R.M.A. was trying to assert.

“The MHRA does not define the word ‘sex,’” wrote Powell.  “When there is no statutory definition, the plain and ordinary meaning of a statutory term can be derived from the dictionary.”  Quoting from Webster’s 3rd New International Dictionary (1993), the word “sex” means “one of the two divisions of [organisms] esp. human beings respectively designated male or female.”  A secondary definition from Webster’s is the “sum of morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination… that is typically manifested as maleness or femaleness.”  And a third definition: “The sphere of interpersonal behavior esp. between male and female,” and the “phenomena of sexual instincts and their manifestations,” and “determining the sex of an organic being.”  Powell characterized these as boiling down to the concept of “biological sex,” asserting: “The MHRA, therefore, prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”

Consequently, Powell concluded, “the petition survives a motion to dismiss only if it alleges that, as a biological female, R.M.A. was deprived of a public accommodation available to biological males.  R.M.A. makes no such allegation,” Powell continued.  “Instead, R.M.A. alleges he is a female who has transitioned to living as a male, and that the Defendants discriminate against him based on his sex by preventing him from using the boys’ restrooms and locker room.  R.M.A. does not allege that, as a biological female, he was barred from any public accommodation afforded to biological males.  Instead, R.M.A.’s allegation of discrimination distills to an acknowledgment that the Defendants excluded him from the boys’ restrooms and locker room because he is biologically female. If, as the principal opinion reasons, the relevant allegation is that R.M.A.’s ‘legal sex’ is male, then the majority will have ignored the crux of the petition while discarding the substance of the MHRA. The logical upshot is that the majority is presumably willing to hold the MHRA prohibits schools from maintaining separate restrooms and locker rooms for male and female students.  The alternative, of course, is to accept all of R.M.A.’s allegations as true, apply the plain language of the MHRA, and hold R.M.A.’s petition fails to state a claim of sex discrimination.”

Powell concluded that the question whether the statute should cover this kind of case was a policy question for the legislature, not the court.  “The General Assembly has spoken, and R.M.A.’s petition fails to state a claim of unlawful sex discrimination under the MHRA,” stated Powell, declaring that the judgment of the circuit court should be affirmed.  To Judge Wilson, speaking for a majority of the court, Judge Powell’s arguments were irrelevant on the motion to dismiss, since R.M.A. had met the minimal pleading requirement of articulating a claim of sex discrimination.

Given the voting dispositions in these two cases, it is difficult to predict the future course of sex discrimination claims by gay and transgender plaintiffs in Missouri.  While they may survive motions to dismiss their claims, and a reluctant Human Rights Commission may be able to conciliate with the parties and obtain settlements in some cases, ultimately the questions posed by Judge Powell will come right back when the cases are litigated on the merits.  Since Judge Draper’s analysis was supported by only a minority of the court, it is uncertain whether his use of the sex stereotype theory would prevail in a ruling on the merits of a gay plaintiff’s sex discrimination claim.  And the limited nature of Judge Wilson’s ruling in R.M.A.’s case gives no hint of how a majority of the court would deal with a transgender student’s claims to restroom and locker room access.  Looming over all these questions is the pending 8th Circuit appeal under Title VII, and the possibility that the U.S. Supreme Court may hear cases next term concerning gay and transgender rights under federal sex discrimination laws.

Lampley and Frost are represented by Jill A. Silverstein, D. Eric Sowers, Ferne P. Wolfe and Joshua M. Pierson of Sowers & Wolf LLC in St. Louis.  R.M.A. is represented by Alexander Edelman and Katherine Myers of Edelman, Lisen & Myers LLP in Kansas City, and Madeline Johnson of the Law Offices of Madeline Johnson in Platte City, Missouri.

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

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

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

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

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

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

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

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

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

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

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

Iowa Judge Strikes Down Medicaid Ban on Sex Reassignment Surgery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Appeals Court Renders Decisive Win for Transgender Students in Pennsylvania

Posted on: July 1st, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals issued an extensive written opinion on June 18, explaining the decision it had announced on May 24 to reject a legal challenge by some students and parents to the Boyertown School District’s decision to let transgender students use facilities consistent with their gender identity.  The opinion, written by Circuit Judge Theodore McKee, is a total victory for the school district and its transgender students, upholding the trial court’s refusal to enjoin the District’s trans-friendly policies while the case is being litigated.  Doe v. Boyertown Area School District, 2018 U.S. App. LEXIS 16323, 2018 WL 3016864.

This lawsuit was originally filed in March 2017 by Alliance Defending Freedom (ADF), the Christian law firm that specializes in opposing policies protective of LGBT rights, representing some students at the Boyertown, Pennsylvania, schools, who objected to sharing facilities with transgender students. Some of the students’ parents or guardians are also plaintiffs in the case.  Citing an incident where one of the plaintiffs actually encountered a transgender student in a restroom, they claim that the District’s policy creates a “hostile environment” for the non-transgender students, violating their rights under Title IX, the Constitution, and the Pennsylvania common law right of privacy.

Title IX is a federal statute that provides that students at schools that receive federal financial assistance may not be deprived of equal educational opportunity on account of sex. In addition, the 14th Amendment has been interpreted to forbid sex discrimination by public institutions, as well as to protect the privacy rights of individual citizens from invasion by the government.  Pennsylvania’s common law recognizes a legal theory of unreasonable intrusion on the seclusion of another as a wrongful invasion of privacy.

The plaintiffs in this case argue that their equality and privacy rights were abridged by the School District’s policy allowing transgender students to use facilities consistent with their gender identity. The District undertook renovations of restroom and locker room facilities to increase individual privacy, and  has provided several single-user restrooms at the high school to accommodate any students who might feel uncomfortable using shared facilities to relieve themselves or change clothes.

U.S. District Judge Edward G. Smith issued a ruling last August denying a preliminary injunction that the plaintiffs requested to block the school’s policy while the case was litigated. Judge Smith found that the plaintiffs were unlikely to succeed on the merits of their claim, and that granting the injunction would cause more harm to transgender students than any benefit to the plaintiffs.

McKee began his analysis by discussing the plaintiffs’ constitutional privacy claim. He acknowledged past cases holding that “a person has a constitutionally protected privacy interest in his or her partially clothed body,” but, he wrote, “the constitutional right to privacy is not absolute.  It must be weighed against important competing governmental interests.  Only unjustified invasions of privacy by the government are actionable.”  In this case, District Judge Smith had found that the Boyertown School District’s policy served “a compelling state interest in not discriminating against transgender students,” and that the policy was “narrowly tailored to that interest.”  The 3rd Circuit panel agreed with this conclusion.

The court found that “transgender students face extraordinary social, psychological, and medical risks and the School District clearly had a compelling state interest in shielding them from discrimination.” The court described expert testimony about the “substantial clinical distress” students could suffer as a result of gender dysphoria, which “is particularly high among children and may intensify during puberty.  The Supreme Court has regularly held that the state has a compelling interest in protecting the physical and psychological well-being of minors,” McKee continued.  “When transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated – indeed, it can be life threatening.  This record clearly supports the District Court’s conclusion that the School District had a compelling state interest in protecting transgender students from discrimination.”

The court also observed that the challenged policy “fosters an environment of inclusivity, acceptance, and tolerance,” and specifically noted the amicus brief filed by the National Education Association, explaining how “these values serve an important educational function for both transgender and cisgender students.” Thus, the policy benefits not only transgender students but “it benefits all students by promoting acceptance.”

The court also pointed out that the District had gone out of its way to accommodate the privacy concerns of cisgender students by renovating the restrooms and locker rooms to enhance privacy and by making single-user restrooms available. “To the extent that the appellants’ claim for relief arises from the embarrassment and surprise they felt after seeing a transgender student in a particular space,” wrote McKee, “they are actually complaining about the implementation of the policy and the lack of pre-implementation communication.  That is an administrative issue, not a constitutional one.”

Thus, the court concluded, even if the policy is subject to “strict scrutiny” because it may involve a fundamental privacy right, it survives such scrutiny because of the compelling state interest involved and the way the District went about implementing it. The court observed that requiring the transgender students to use the single-sex facilities would not satisfy the state’s compelling interest, but would actually “significantly undermine it” since, as the 7th Circuit Court of Appeals stated last year in the case of transgender high school student Ash Whitaker, “a school district’s policy that required a transgender student to use single-user facilities ‘actually invited more scrutiny and attention from his peers.’”  McKee observed that “adopting the appellants’ position would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as a price of attending their public school.”

Furthermore, the court pointed out, the District’s policy “does not force any cisgender student to disrobe in the presence of any student – cisgender or transgender,” since the District has provided facilities “for any student who does not feel comfortable being in the confines of a communal restroom or locker room.” The renovation included “privacy stalls” and single-user facilities “so that any student who is uneasy undressing or using a restroom in the presence of others can take steps to avoid contact.”

But, said the court, it had never recognized an expansive constitutional right of privacy to the extent demanded by the plaintiffs in this case, and “no court has ever done so.” “School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected.” Even the Supreme Court has commented that “public school locker rooms are not notable for the privacy they afford.”  So the court was unpersuaded that the plaintiffs’ demand in this case had any support in constitutional privacy law.

The 3rd Circuit panel also endorsed Judge Smith’s conclusion that there was no Title IX violation here.  As Smith found, “the School District’s policy treated all students equally and therefore did not discriminate on the basis of sex.”  Judge Smith had also found that the factual allegations did not rise to the level of a “hostile environment” claim, and the 3rd Circuit panel agreed with him.

Judge McKee pointed out that the Title IX regulations upon which plaintiff was relying do not mandate that schools provide “separate privacy facilities for the sexes,” but rather state permissively that providing separate facilities for male and female students will not be considered a violation of Title IX provided the facilities are equal. Furthermore, in order to find a hostile environment, the court would need evidence of “sexual harassment that is so severe, pervasive, or objectively offensive and that ‘so undermines and detracts from the victims’ educational experience that he or she is effectively denied equal access to an institution’s resources and opportunities.’”  The plaintiffs’ allegations in this case came nowhere near meeting that standard.

Furthermore, the denial of equal access must be based on sex to violate Title IX. “The appellants have not provided any authority to suggest that a sex-neutral policy can give rise to a Title IX claim,” wrote Judge McKee.  “Instead, they simply hypothesize that ‘harassment’ that targets both sexes equally would violate Title IX; that is simply not the law.” He observed that the School District’s policy “allows all students to use bathrooms and locker rooms that align with their gender identity.  It does not discriminate based on sex, and therefore does not offend Title IX.”

The School District argued in response to the plaintiffs’ arguments that “barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX.” This was the argument accepted by the 7th Circuit in Ash Whitaker’s lawsuit, and Gavin Grimm’s continuing lawsuit against the Gloucester County, Virginia, school district under Title IX, also advancing this theory, recently survived a motion to dismiss in the federal district court there.

But, wrote McKee, “We need not decide that very different issue here,” although he characterized the 7th Circuit’s decision in Whitaker’s case as “very persuasive” and said, “The analysis there supports the District Court’s conclusion that appellants were not likely to succeed on the merits of their Title IX claim.”

The court also agreed with Judge Smith’s conclusion that separate state tort law claims asserted by the plaintiffs were unlikely to be successful, having found that “the mere presence of a transgender individual in a bathroom or locker room is not the type of conduct that would be highly offensive to a reasonable person,” which is the standard for the tort of “intrusion upon seclusion” in Pennsylvania. The court also approved Smith’s finding that denying the preliminary injunction would not cause irreparable harm to the plaintiffs, as the District has taken reasonable steps to protect their privacy.

Thus, the District’s trans-supportive policy will remain in effect while this case is litigated. The likely next step, if ADF does not slink away in defeat, would be to litigate motions for summary judgment if the parties agree that there is no need for a trial over disputed facts.  However, ADF is likely to sharply contest the facts, so it may be that an actual trial is needed to resolve this case.

Levin Legal Group of Huntingdon Valley, Pennsylvania, represents the School District, and the ACLU of Pennsylvania and the ACLU’s national LGBT Rights Project, with volunteer attorneys from the law firm Cozen O’Connor, represent the Pennsylvania Youth Congress Foundation, which intervened in the case to protect the interests of transgender students in the Boyertown District.

Justice Department’s New Request to Implement Transgender Policy Denied by Seattle District Court

Posted on: June 19th, 2018 by Art Leonard No Comments

U.S. Senior District Judge Marsha J. Pechman issued an opinion on June 15, rejecting another attempt by the Trump Administration to get her to lift her preliminary injunction in Karnoski v. Trump and allow the latest version of President Trump’s ban on military service by transgender individuals to go into effect while they appeal her earlier rulings to the 9th Circuit Court of Appeals.  Hope springs eternal at the Justice Department, as their new motion does not really make any arguments that Judge Pechman did not reject in her earlier opinions.  The new opinion in Karnoski v. Trump, 2018 U.S. Dist. LEXIS 100789 (W.D. Wash.), rejects the same arguments emphatically.

Last July, the President tweeted his declaration that transgender people would not be allowed to serve in the U.S. military in any capacity, purporting to reverse a policy on transgender service adopted by the Obama Administration and in effect since July 1, 2016. A month later the White House issued a memorandum setting out the President’s new policy in greater detail, including an implementation date in March 2018 and a permanent postponement of the January 1, 2018, date that had been set by Defense Secretary James Mattis last June for allowing transgender individuals to apply to join the service.  Four lawsuits were filed by different groups of plaintiffs in District Courts in Washington, D.C., Baltimore, Seattle, and Riverside (California), challenging the constitutionality of the policy.  All four federal district judges found that the plaintiffs were likely to win on the merits and issued preliminary injunctions intended to have national effect, forbidding implementation of the policy while the litigation proceeded.  None of the district judges were willing to stay their injunctions pending appeal, and the D.C. and 4th Circuit Courts of Appeals also rejected motions to stay, at which point the Justice Department temporarily desisted from further appeals.

Meantime, Trump had ordered Mattis to come up with a written plan for implementation of the August Memorandum, to be submitted to the White House in February. After Mattis submitted his proposal, which departed in some particulars from the August Trump Memorandum, Trump “withdrew” his Memorandum and tweets and authorized Mattis to adopt his plan.  The Justice Department then argued to Judge Pechman that her preliminary injunction should be lifted, because the policy at which it was directed was no longer on the table.

The judge concluded, however, in line with the plaintiff’s arguments, that the new policy was just a slightly modified version of the earlier policy, presenting the same constitutional flaws, so she refused to vacate her injunction. Instead, responding to motions for summary judgment, she ruled that the case should proceed to discovery and a potential hearing on contested fact issues.  The Justice Department filed a notice of appeal to the 9th Circuit on April 30, and filed a motion with Judge Pechman seeking an expedited ruling on the plaintiffs’ motion for summary judgment so that it could be appealed.  However, the judge declined to issue an expedited ruling, as discovery was supposed to take place and disputed facts might require a hearing to resolve.  Discovery has been delayed by the Justice Department’s insistence that much of the information the plaintiffs seek is covered by Executive Privilege, a dubious claim at best. The Justice Department has filed a motion with the 9th Circuit asking it to stay the preliminary injunction pending appeal, but as of June 15 the 9th Circuit had not responded to the motion.

Judge Pechman’s June 15 opinion said that “each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.” She pointed out that she was no more persuaded now than she had been previously by the argument that Mattis’s Implementation Plan was a “new and different” policy.

The Justice Department also argued that “the Ninth Circuit and/or this Court ultimately are highly likely to conclude that significant deference is appropriate,” but Judge Pechman responded, “whether any deference is due remains unresolved.  Defendants bear the burden of providing a ‘genuine’ justification for the Ban.  To withstand judicial scrutiny, that justification must ‘describe actual state purposes, not rationalizations’ and must not be ‘hypothesized or invented post hoc in response to litigation.’”  To date,” she observed, “Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”

She also pointed out that there are four nationwide preliminary injunctions in effect, not just hers. “As a practical matter,” she wrote, “Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”

The Justice Department also argued that failure to let the government implement the ban “will irreparably harm the government (and the public) by compelling the military to adhere to a policy it has concluded poses substantial risks.” But, Judge Pechman pointed out, at a hearing of the Senate Committee on Armed Services held after her injunction went into effect, both the Army Chief of Staff, General Mark Milley, and the Chief of Naval Operations, Admiral John Richardson, had testified that there were no problems with transgender people serving, as thousands are now doing.  Milley testified that he “monitors very closely” the situation and had received “precisely zer”’ reports of problems related to unit cohesion, discipline and morale.  Similarly, Admiral Richardson testified that he had received no negative reports, and that, in his experience, “it’s steady as she goes.”

The judge had already found that staying her injunction would likely cause irreparable injury to the plaintiffs, and that, in fact, “maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.”  She also rejected the Justice Department’s argument that her injunction should just apply to the nine individual transgender plaintiffs in the case, stating, “The Ban, like the Constitution, would apply nationwide.  Accordingly, a nationwide injunction is appropriate.”  And, she wrote, “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide.”

The plaintiffs in the Karnoski case are represented by a small army of lawyers affiliated with Lambda Legal, Kirkland & Ellis (Chicago), Outserve-SLDN, and Seattle local counsel Newman & Du Wors LLP. The state of Washington, co-plaintiff in the case, is represented by attorneys from Kirkland & Ellis and the Washington Attorney General’s Office.  Fifteen states and the District of Columbia, the Constitutional Accountability Center, and Legal Voice (formerly known as the Northwest Women’s Law Center) are also participating in this case as amicus on behalf of the plaintiffs.

Obscure Brooklyn Appellate Ruling Protects Transgender People from Discrimination Without Saying So

Posted on: June 14th, 2018 by Art Leonard No Comments

Talk about “hiding the ball!” On June 6, a unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, confirmed an Order by the State Division of Human Rights (SDHR), which had adopted a decision by an agency administrative law judge (ALJ) ruling that a Port Jervis employer violated the human rights law when it discharged a transgender employee.

But nobody reading the court’s short memorandum opinion, or the short agency opinion and order, would have any idea that the case involved a gender identity discrimination claim. Surprisingly, given the novelty of the legal issues involved, only the administrative law judge’s opinion, an internal agency document, communicates what the case is actually about.

The case is Matter of Advanced Recovery, Inc. v. Fuller, 2018 N.Y. Slip Op 03974, 2018 N.Y. App. Div. LEXIS 3969, 2018 WL 2709861 (N.Y. App. Div., 2nd Dept., June 6, 2018).

Erin Fuller, a transgender woman, was fired by Mark Rea, the owner and chief executive of Advanced Recovery, Inc., the day Fuller presented a supervisor with a copy of a court order authorizing her change of name from Edward to Erin and the supervisor passed the document to Rea. Rea called Fuller into his office and, according to Fuller, said in the presence of the supervisor, “Now I have a problem with your condition.  I have to let you go.”

Rea and other company officials had been aware for some time that Fuller was transitioning, since she had presented them with a letter from her doctor in 2009 explaining her gender dysphoria diagnosis and how she would be transitioning, and on at least one occasion Rea had reacted adversely to Fuller’s mode of dress, but it wasn’t until he was presented with the legal name change that Rea apparently decided that he had enough and no longer wanted Fuller, a good worker who had been with the company more than two years.

When Fuller went back later to pick up her final paycheck, a supervisor told her that “he felt bad, but your job would be waiting for you as long as you came in wearing normal clothes.”

Attempting to escape possible liability, Rea and the company’s lawyer later came up with a termination letter that cited other reasons for terminating Fuller and said nothing about her name change, mode of dress, or gender identity, but they never sent her that letter, which first surfaced when it was offered as evidence at the SDHR law judge’s hearing on Fuller’s discrimination claim.

The discharge took place on August 4, 2010, several years before Governor Andrew Cuomo directed the SDHR to adopt a policy under which gender identity discrimination claims would be deemed to come within the coverage of the state’s ban on sex discrimination.

Fuller filed her complaint with SDHR on October 13, 2010. On the complaint form, she checked the boxes for “sex” and “disability” as the unlawful grounds for her termination.  After the company was notified of the complaint, it apparently prompted local police to arrest Fuller for altering a medical prescription, a spurious charge based on her changing the pronouns on the note written by a doctor on a prescription form after she missed a few days of work due to hospital treatment.  At the time, she didn’t think of amending her discrimination charge to allege retaliation, unfortunately, waiting until the hearing to raise the issue, by which time the judge had to reject her motion because she waited too long to assert the retaliation claim.

The agency concluded, after investigation, that it had jurisdiction over the discharge claim and set the case for a public hearing before an ALJ. At the hearing, Fuller was represented by attorneys Stephen Bergstein and Helen Ullrich, who persuaded the judge that Fuller had a valid claim and that the reasons given by the employer for firing her were pretexts for discrimination.  The same lawyers represented Fuller when the company appealed the judge’s ruling to the Appellate Division.

Relying on a scattering of trial court decisions holding that transgender people are protected from discrimination under the New York Human Rights Law, ALJ Robert M. Vespoli concluded that Fuller “states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals.”

“Complainant also has a disability,” wrote Vespoli, “as that term is defined in the Human Rights Law.” The New York Human Rights Law’s definition of “disability” is broader and more general than the federal definition in the Americans with Disabilities Act, and New  York law does not have the explicit exclusion of coverage for people with “gender identity disorders” that is in the federal law.  Under New York’s law, a disability is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”  The statute provides that a disability may also be a “record of such impairment or the perception of such impairment.”

“During the relevant time period,” wrote Vespoli, “Complainant was diagnosed with gender dysphoria. This condition falls within the broad definition of disability recognized under the Human Rights Law,” citing a 2011 decision by the agency to recognize its jurisdiction in a transgender discrimination case. The employer could not claim ignorance about Fuller’s transition, because in 2009 she had presented the company with her doctor’s letter explaining the situation, after which she began to dress and groom differently.

In his opinion dated February 20, 2015, Judge Vespoli rejected the employer’s evidence of other reasons for the discharge, finding that the proffered letter was a document created after the discharge for the purpose of litigation, that it had never been delivered to Fuller, and that the reasons it offered were pretexts for discrimination. The judge recommended awarding Fuller $14,560.00 in back pay and $30,000.00 for mental anguish caused by the discrimination.  He also recommended imposing a civil penalty on the company of $20,000.00.

The company filed objections to Vespoli’s recommendations with the Commission, but did not specifically object to Vespoli’s finding that Fuller had a disability or that the agency had jurisdiction over this case on grounds of sex and disability. The Commission’s Notice and Final Order of April 1, 2015, overruling without discussing the company’s evidentiary objections and adopting the judge’s recommendations and findings, said nothing about the details of the case, beyond noting that Fuller had complained of discrimination because of sex and disability.

The company’s appeal to the court again did not explicitly contest the ruling that the statute covers the case, instead urging the court to find that the ruling was not supported by substantial evidence of discrimination. Perhaps because the company’s appeal did not raise the question whether the Human Rights Law bans discrimination because of gender identity, the Appellate Division’s ruling also  did not  mention that the complainant is a transgender woman, and did not discuss the question whether this kind of case is covered under the disability provision.  Rather, the court’s opinion recites that the complainant alleged “that the petitioners discriminated against her on the basis of sex and disability,” and that the agency had ruled in her favor.  “Here there is substantial evidence in the record to support the SDHR’s determination that the complainant established a prima facie case of discrimination, and that the petitioners’ proffered reasons for terminating the complainant’s employment were a pretext for unlawful discrimination.  The petitioner’s remaining contentions are either not properly before this Court or without merit.”

Of course, Fuller’s brief in response to the appeal would have mentioned this issue, and SDHR, which cross-petitioned for enforcement of its Order, mentioned the issue as well.

The court wrote that there is “substantial evidence in the record” to support the agency’s ruling, so the court presumably looked at the record, including the ALJ’s opinion, and was aware that this was a gender identity discrimination claim.  The appellate panel surely knew that this was an important issue in the case.

Cursory research in published New York court opinions would show that there is no prior appellate ruling in New York finding that a gender identity claim can be asserted under the Human Rights Law’s prohibited grounds of “sex” and “disability.” The court took its time on this case, waiting until June 6, 2018, to issue a ruling upholding an administrative decision that was issued on April 1, 2015.  Despite taking all this time, the court produced an opinion that never mentions these details, that provides no discussion of the ALJ’s analysis of the jurisdictional issue, and that does not expressly state agreement with the trial court ruling that Judge Vespoli specifically cited in support of his conclusions.

This may be the first case in which a New York appellate court has affirmed a ruling holding that an employer violated the state’s Human Rights Law by discriminating against an employee because of her gender identity, but you wouldn’t know it by reading the court’s opinion. While the court’s failure to mention the doctrinal significance of its ruling may be explainable because the employer did not raise the issue on its appeal, it’s omission nonetheless renders the decision basically useless as an appellate precedent.

One can fairly criticize the court for failing to play its proper role in a system of judicial precedent to produce a decision that can be referred to by later courts. The judges whose names appear on this uninformative opinion are Justices Mark C. Dillon, Ruth C. Balkin, Robert J. Miller, and Hector D. LaSalle.

Governor Cuomo’s directive, issued while this case was pending before the Appellate Division, actually reinforced existing practice at the State Division of Human Rights, as the earlier opinions cited in Judge Vespoli’s opinion show, but in the absence of an explicit appellate ruling, enactment of the Gender Identity Non-Discrimination Act remains an important goal and its recent defeat in a Senate committee after renewed passage by the Assembly is more than merely a symbolic setback for the community.

A legal team of Caroline J. Downey, Toni Ann Hollifield and Michael K. Swirsky represented SDHR before the Appellate Division, which had cross-petitioned for enforcement of its decision. Port Jervis lawyer James J. Herkenham represented the company, and Stephen Bergstein of Bergstein & Ullrich presented Fuller’s response to the appeal.

 

 

 

 

 

 

Third Circuit Rejects Challenge to Pennsylvania School District’s Policy Allowing Transgender Students to Use Facilities Consistent with Their Gender Identities

Posted on: May 26th, 2018 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit took the unusual step on May 24 of announcing about an hour after hearing oral argument that it would unanimously affirm U.S. District Judge Edward G. Smith’s ruling from last summer denying a motion for a preliminary injunction by a group of parents and students seeking to stop the Boyertown (Pennsylvania) Area School District from continuing to implement a policy allowing transgender students to use locker rooms and bathrooms corresponding to their gender identities. Doe v. Boyertown Area School District, 2018 WL 2355999 (3rd Cir., May 24, 2018), affirming 276 F. Supp. 2d 324 (E.D. Pa., August 25, 2017).

Later that day, the court issued a brief “Judgement” written by Circuit Judge Theodore A. McKee, so brief that it can be quoted in full here: “We agree Plaintiffs have not demonstrated a likelihood of success on the merits and that they have not established that they will be irreparably harmed if their Motion to Enjoin the Boyertown School District’s policy is denied. We therefore Affirm the District Court’s denial of a preliminary injunction substantially for the reasons that the Court explained in its exceptionally well-reasoned Opinion of August 25, 2017.  A formal Opinion will follow. The mandate shall issue forthwith.  The time for filing a petition for rehearing will run from the date that the Court’s formal opinion is entered on the docket.”  There was some suggestion in press reports that after hearing argument the court was concerned that the affirmance be effective immediately, since the school year would shortly end.

This is one of several similar cases filed around the country by Alliance Defending Freedom (ADF), an organization formed to advance the freedom of Christians to assert the primacy of their beliefs over any conflicting obligations imposed by law. ADF is a staunch opponent of LGBT rights, battled on the ramparts to oppose marriage equality and to support the ability of businesses operated by Christians to refuse to sell their goods and services for same-sex weddings.  ADF has inserted itself into the “bathroom wars” by filing lawsuits on behalf of parents and allegedly cisgender students who oppose allowing transgender students to use single-sex facilities consistent with their gender identities.  When Judge Smith issued his decision last August, a federal magistrate judge in Illinois, Jeffrey T. Gilbert, had issued a report and recommendation to U.S. District Judge Jorge L. Alonso, which recommended denying ADF’s motion for a preliminary injunction against a similar school district policy in Students & Parents for Privacy v. United States Department of Education, 2016 WL 6134121 (N.D. Ill., Oct. 18, 2016), and Judge Smith cited and relied on Judge Gilbert’s analysis at various points in his decision.  Judge Alonso subsequently adopted Judge Gilbert’s Report and Recommendations, over the objections of ADF, on December 29, 2017, in Students & Parents for Privacy v. United States Department of Education, 2017 WL 6629520.

The plaintiffs in the Boyertown case argued three legal theories: first, that the district’s policy violates the constitutional privacy rights of non-transgender students under the 14th Amendment; second, that the school district’s policy violates Title IX’s requirement, as fleshed out in Education Department regulations, to provide separate restroom and locker room facilities for boys and girls; and third, that the policy violates Pennsylvania’s common law tort of invasion of privacy by intruding on the right of seclusion of non-transgender students.  Judge Smith found that the record compiled by the parties in response to the plaintiffs’ motion for preliminary injunction showed that the plaintiffs were unlikely to prevail on any of these claims.  The bulk of his lengthy opinion (which runs 83 pages, including about six pages of headnotes, in Lexis) is devoted to a careful delineation of the factual record upon which he based his legal analysis.

Judge Smith explored each of the three theories at length, rejecting ADF’s argument that high school students have some sort of fundamental constitutional right not to share restroom facilities with transgender students because of the possibility that a transgender student would see them in their underwear, and noting particularly that factual allegations by individual plaintiff students who had found themselves in restrooms with transgender students showed that even if such a “right” existed, it had not been violated in any instance.

As to the Title IX argument, plaintiff insisted that allowing transgender students to use the restrooms created a “hostile environment” for the non-transgender students, but Judge Smith, recurring to Judge Gilbert’s ruling in the Illinois case, observed that “the School District treats both male and female students similarly,” undercutting the argument that the District is discrimination in education opportunity “because of” the sex of the individual plaintiff students.   “The practice applies to both the boys’ and girls’ locker rooms and bathrooms,” wrote Smith, “meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms with transgender girls.  In addition, with regard to the transgender students, both transgender boys and transgender girls are treated similarly insofar as they, upon receiving permission from the School District, may use the locker rooms and bathrooms corresponding with their gender identity.  Moreover, the School District is not discriminating against students regarding the use of alternative facilities if students are uncomfortable with the current practice insofar as those facilities are open to all students who may be uncomfortable using locker rooms or multi-user facilities… The School District’s similar treatment of all students I fatal to the plaintiffs’ Title IX claim.”  Concluding on the Title IX point, Judge Smith wrote, “The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual harassment hostile environment claim when the allegedly sexually harassing party treats all individuals similarly and there is, as such, no evidence of gender/sex animus.”  Simply put, the District was not “targeting” any student for particular adverse treatment because of his or her sex.  Judge Smith also pointed out that the law of “hostile environment” as it has been developed under Title VII of the Civil Rights Act of 1964, to which courts refer in Title IX cases, sets a very high evidentiary bar for establishing a hostile environment, which he concluded could not be met by the plaintiffs’ factual allegations in this case.

As to the tort of invasion of privacy claim, Judge Smith noted that there were no allegations that any of the named defendants had personally invaded the privacy of any of the plaintiffs, as the plaintiffs’ factual allegations all related to two transgender students, identified as Student A and Student B, whose presence in locker rooms or restrooms was the subject of individual plaintiffs’ angst. But, of course, Students A and B were only present in those facilities because the District’s policy allowed them to be.  “The court does not deny that an individual seeks seclusion in a bathroom toilet stall from being viewed by other people outside of the stall,” wrote Judge Smith, pointing out that the cases cited by the plaintiffs in support of their common law privacy claims “involve alleged invasions of privacy in bathroom stalls,” usually involving police surveillance of public restrooms.  “Here,” Smith pointed out, “there are no allegations and the plaintiffs presented no evidence that any transgender student invaded their seclusion while they were in a bathroom stall.  And similarly, although the plaintiffs indicate that viewing a person while in a bathroom would be ‘considered “highly offensive” by any reasonable person,’ the case cited involved an intrusion into a single bathroom stall and not the presence of someone in the common area of a multi-user facility.”  After noting how the plaintiffs’ factual allegations about particular incidents involving transgender students in restrooms fell short of supporting the plaintiffs’ contentions about unwanted exposure of their bodies, Smith wrote, “the court does not find that a reasonable person would be offended by the presence of a transgender student in the bathroom or locker room with them, despite the possibility that the transgender student could possibly be in a state of undress more significant than Student A was in this case when the male plaintiffs same him.”  He concluded similarly regarding the other incidents described by the plaintiffs, and concluded they had not shown a likelihood that they would be able to establish liability under Pennsylvania’s invasion of privacy tort.

That could be the end of Smith’s analysis, since a finding that plaintiffs are likely to prevail would be necessary to ground a preliminary injunction against the District’s policy, but Smith, to be thorough, analyzed the irreparable harm factor that courts consider, concluding that because the District was providing single-user alternatives the individual plaintiffs would not be irreparable harmed if the policy was allowed to continue in effect. He concluded as well that because these two factors weighed against granting the injunction, there was no need to perform the “balance of harms” analysis that would necessarily follow if the plaintiffs had prevailed on the first two factors.

As noted above, the 3rd Circuit’s brief Judgement issued on May 24 described Judge Smith’s opinion as “exceptionally well-reasoned,” so it is likely that the “formal opinion” to follow will run along similar lines and probably quote liberally from Judge Smith.  Also, it would not be surprising were the court of appeals to give persuasive weight to decisions from other courts ruling on claims by transgender students to a right under Title IX and the 14th Amendment to use facilities consistent with their gender identity.  In the course of deciding those cases, the courts necessarily considered the same factual and legal issues presented by the Parents & Students cases.  In light of the judicial rulings so far in these “bathroom wars” cases, a consensus seems to have emerged in the federal judiciary that is part of a larger movement in the law in the direction of recognizing transgender civil rights claims under both the Equal Protection Clause in constitutional law and the statutory bans on discrimination because of sex.

In addition to ADF’s attorneys and the attorneys defending the school district, the court heard from ACLU attorneys representing the interests of transgender students in the Boyertown School District, including lead attorney Leslie Cooper with the ACLU LGBT Rights Project, lead attorney Mary Catherine Roper with the ACLU of Pennsylvania, and cooperating attorneys from Cozen O’Connor, a Philadelphia law firm.

 

Federal Court Rejects Gloucester School District’s Motion to Dismiss Gavin Grimm’s Case

Posted on: May 23rd, 2018 by Art Leonard No Comments

Opening up a new chapter in the continuing battle of Gavin Grimm to vindicate his rights as a transgender man, U.S. District Judge Arenda L. Wright Allen issued an Order on May 22 denying the Gloucester County (Virginia) School Board’s motion to dismiss the latest version of the case Grimm filed back in July 2015, prior to his sophomore year at Gloucester High School.

During the summer of 2014, Grimm’s transition had progressed to the point where he and his mother met with high school officials to tell them that he was a transgender boy and “would be attending school as a boy,” wrote Judge Allen.  They agreed to treat him as a boy, including allowing him to use the boys’ restrooms.  He did so for about seven weeks without any incident, until complaints by some parents led the school board to adopt a formal policy prohibiting Grimm from using the boys’ restrooms.  The school established some single-user restrooms that were theoretically open to all students, but Grimm was the only one who used them because they were not conveniently located to classrooms.

“Because using the single-user restrooms underscored his exclusion and left him physically isolated,” wrote Judge Allen, “Mr. Grimm refrained from using any restroom at school.  He developed a painful urinary tract infection and had difficulty concentrating in class because of his physical discomfort.”  During the summer after his sophomore year, he filed his lawsuit, alleging violations of Title IX – a federal statute that forbids schools from discriminating because of sex – and the Equal Protection Clause of the Constitution.

Meanwhile, Grimm had begun hormone therapy in December 2014, “which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.”  In June 2015, he received a new Virginia identification car from the Motor Vehicles Department designated him as male.  During the summer of 2016, he had chest-reconstruction surgery, a necessary step to get the circuit court to issue an order changing his sex under Virginia law and directing the Health Department to issue him a birth certificate listing him as male.  He received the new birth certificate in October 2016.  Thus, as of that date, Grimm was male as a matter of Virginia law.

Yet, despite all these physical and legal changes, the School District clung to its contention that his “biological gender” was female and that he could not be allowed to use boys’ restrooms at the high school.  The school maintained this prohibition through the end of the school year, when Grimm graduated.

Meanwhile, his lawsuit was not standing still.  Senior U.S. District Judge Robert G. Doumar dismissed his Title IX claim in September 2015, denying his motion for a preliminary injunction, and holding his Equal Protection Claim in reserve while he appealed to the U.S. Court of Appeals for the 4th Circuit, based in Richmond.  In the spring of 2016, the 4th Circuit sent the case back to the district court, issuing an opinion holding that the court should have deferred to the position advanced by the U.S. Departments of Education and Justice, which opined that discrimination because of gender identity is sex discrimination and schools are required under Title IX to treat student consistent with their gender identity.

Judge Doumar then issued a preliminary injunction during the summer of 2016 ordering the School District to let Grimm use the boys’ restrooms, but the School District obtained a stay of that order from the Supreme Court, which subsequently granted the School’s petition to review the 4th Circuit’s “deference” ruling.  The Supreme Court scheduled the case for argument, but then the incoming Trump Administration “withdrew” the position that the Obama Administration had taken, knocking the props out from under the 4th Circuit “deference” ruling, and persuaded the Supreme Court to cancel the argument and send the case back to the 4th Circuit, which in turn sent it back to the district court.  And, by the time it got there, Grimm had graduated from Gloucester County High School.

The School District attempted to get rid of the case at that point, arguing that it was moot.  Grimm begged to differ, arguing that his Title IX and Equal Protection rights had been continuously violated by the School District from the time it adopted its exclusionary restroom policy through the time of his graduation.  In a newly amended complaint, Grimm sought a declaratory judgement as to the violation of his rights under both Title IX and the constitution and an end to the school’s exclusionary policy.

The School District moved to dismiss this new complaint, leading to the May 22 ruling by Judge Allen, to whom the case had been reassigned in the interim. Judge Doumar, who was born in 1930, was appointed to the court by President Reagan and is still serving as a part-time senior district judge.  Judge Allen was appointed to the court by President Obama in 2011.

Judge Allen’s opinion relies heavily on important judicial developments that have occurred since Judge Doumar’s initial dismissal of the Title IX claim back in 2015. The 4th Circuit has yet to issue a ruling on the merits of the question whether federal laws that forbid discrimination because of sex can be construed to apply to gender identity discrimination claims.  Since the Supreme Court has also avoided addressing that issue, it was open to Judge Allen to follow as “persuasive precedents” the lengthening list of rulings from other federal courts, including five different circuit courts of appeals and many district courts, holding that sex discrimination laws should be broadly construed to cover gender identity claims.

These decisions draw their authority from two important Supreme Court decision: Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner Offshore Services (1998). In Price Waterhouse, the Supreme Court accepted as evidence of intentional sex discrimination an accounting firm’s denial of a partnership to a woman who was deemed inadequately feminine by several partners who voted against her.  In Oncale, the Court ruled that Title VII, the federal law banning employment discrimination because of sex, could apply to a claim of hostile environment sexual harassment by a man who worked in an all-male workplace, commenting that even if this scenario was not contemplated by Congress when it passed Title VII in 1964, that statute could be applied to “comparable” situations.

Since the turn of the century, federal appeals courts have used those two cases to find that transgender people can seek relief from discrimination under the Gender-Motivated Violence Act, the Equal Credit Opportunity Act, Title VII of the Civil Rights Act, Title IX of the Education Amendments Act, and the Equal Protection Clause. In addition, district courts have found such protection under the Fair Housing Act.  A consensus based on the gender stereotype theory has emerged, even in circuits that have generally been hostile to sexual minority discrimination claims.  And, most significantly, the 7th Circuit ruled last year in the case of Ashton Whitaker, a transgender boy, that Title IX and the Equal Protection Clause required a school district to allow him to use boys’ restroom and locker room facilities.  There is no material distinction between the Whitaker and Grimm cases.

Furthermore, and closer to home, on March 12 of this year U.S. District Judge George L. Russell, III, ruled in a case from Maryland (also in the 4th Circuit) that a school district had violated Title IX and the Equal Protection Clause by refusing to allow a transgender boy to use the boys’ locker room at his high school.  Judge Allen found Judge Russell’s analysis persuasive, as she did the recent cases from other courts.

Turning to Grimm’s constitutional claim, Judge Allen followed the precedents from other courts that have determined that discrimination against transgender people is subject to “heightened scrutiny” judicial review, similar to that used for sex discrimination cases. Under this standard, the challenged policy is presumed to be unconstitutional and the government bears the burden of showing that it substantially advances an important governmental interest.

The Gloucester School District argued that its interest in protecting the privacy of other students was sufficient to vindicate its policy, but Judge Allen disagreed, finding that “the policy at issue was not substantially related to protecting other students’ privacy rights. There were many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms.”  The school had created three single-user restrooms open to all students, so any student who sought to avoid using a common restroom with Mr. Grimm had only to use one of those.  She also noted that the School Board reacted to the controversy by taking steps “to give all students the option for even greater privacy by installing partitions between urinals and privacy strips for stall doors.”  Thus, any validity to privacy concerns raised when the controversy first arose had been substantially alleviated as a result of these renovations.

Having denied the School District’s motion to dismiss the amended complaint, Judge Allen directed the attorneys to contact the Courtroom Deputy for United States Magistrate Judges within thirty days to schedule a settlement conference. If the parties can’t work out a settlement with a magistrate judge, the district court will issue a final order dictating what the school district must do to be in compliance with Title IX and the Constitution.  And, because Grimm is the prevailing party in this long-running and hotly litigated civil rights case, one suspects that sometime down the road there will be a substantial attorneys’ fee award.

Grimm’s lawyer, Joshua Block of the ACLU LGBTQ Rights Project, indicated that their goal in the case at this point is the declaratory judgment and nominal damages for Grimm, and of course an end to the School Board’s discriminatory policy. Grimm now lives in Berkeley, California, and intends to begin college this fall in the Bay Area, according to the New York Times’ report on the case.

Of course, the School District may seek to appeal Judge Allen’s Order to the 4th Circuit.  Attorney General Jeff Sessions issued a Memorandum last fall formally rejecting the Obama Administration’s position that federal sex discrimination laws forbid gender identity discrimination, so the School District could count on the Justice Department to support an appeal.  And Trump’s rapid pace in filling federal circuit court vacancies may slow or eventually halt the continuing trend of transgender-positive rulings from the other circuit courts, but that is not likely to be the case in the 4th Circuit for some time.  At present that court has an overwhelming majority of Democratic appointees (including six by Obama and four by Clinton on the 15 member court) with only one vacancy for Trump to fill.  The 4th Circuit was out front of the Supreme Court in 2014 in striking down state bans on same-sex marriage, and its 2016 opinion in Gavin Grimm’s case was notably transgender-friendly, so it is unlikely that an appeal by the School District will be successful in the 4th Circuit.  The Supreme Court, of course, may be a different matter.  Time will tell.

Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

Posted on: May 7th, 2018 by Art Leonard No Comments

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.