New York Law School

Art Leonard Observations

Posts Tagged ‘gender identity’

Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Posted on: September 27th, 2020 by Art Leonard No Comments

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993.  Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.”  Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include.  While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation.  Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination.  Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute.  To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex.  Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops.  Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent.  Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003).  Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law.  Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection.  Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service.  Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v.  Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1st Amendment.  The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS.  Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS.  He argued that the Court was enabling viewpoint discrimination by the public law school.  Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act.  In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII.  In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis.  She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states.  (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.)  As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases.  Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling.  The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008.  Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth.  Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions.  The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing.  They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid.  There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14th Amendment as construed by the Supreme Court in Obergefell v. Hodges.  In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple.  Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process.  Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1st Amendment.  In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964.  The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh.  In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion.  The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers.  This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project.  Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years.  Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress.  Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party.  President Trump announced his nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals on September 26.  Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate.  Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them.  Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

Supreme Court Denies Review in Two LGBT-Related Cases on First Day of New Term

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

The Supreme Court announced on October 7 that it was denying review in two LGBT-related cases: Frank G. v. Joseph P. & Renee P.F., No. 18-1431, a New York case, and Calgaro v. St. Louis County, No. 19-127, a Minnesota case from the 8th Circuit Court of Appeals.  The more significant decision is to deny review in the Frank G. case.

In Frank G., 79 N.Y.S.3d 45 (N.Y. App. Div. 2018), the New York 2nd Department Appellate Division upheld a decision by an Orange County Family Court judge to award custody of twin boys to the former same-sex partner of the children’s biological father, and the New York Court of Appeals denied review.

The children’s biological mother, Renee, is the sister of Joseph P., the former same-sex partner.  Frank G., the biological father, had moved with the children to Florida without notifying Joseph P., who had a closely-bonded relationship with the children even though the fathers were no longer living together.  Joseph P. sued to be appointed a guardian of the children, at a time when the Court of Appeals had not yet recognized the parental status of same-sex partners.

After the Court of Appeals ruled in Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), that same-sex co-parents could be recognized as having the same parental rights and standing as biological or adoptive parents in certain circumstances, even if they were not married to the biological parent or had not adopted the children, Joseph P. amended his complaint to seek custody.

Orange County Family Court Judge Lori Currier Woods evaluated all the relevant circumstances and decided that the children’s best interest would be served by awarding custody to Joseph P. and according visitation rights to Frank G.   She did not find that Frank G. was “unfit”, but instead placed both fathers on equal standing and then considered which one would provide the preferable home for the twins.  Relying on Brooke S.B., the Appellate Division affirmed.  Frank G. tried to appeal this ruling to the Court of Appeals, arguing that his Due Process rights under the 14th Amendment of the U.S. Constitution were violated by the lower courts’ opinion, but the Court of Appeals refused to hear his appeal.

In past cases, the Supreme Court has recognized as a fundamental right the liberty interest of biological parents in the care and raising of their children.  In his Petition to the Supreme Court, Frank G. argued that this liberty interest was violated when he was deprived of custody in favor of a co-parent based on a “best interest of the children” analysis without any finding that he was unfit or unqualified to have custody.

The Petition argued to the Supreme Court that the case had national significance and needed a Supreme Court ruling, because various state courts have disagreed about how to handle parental custody claims by unmarried same-sex partners of biological or adoptive parents.  Since the Supreme Court is most likely to grant review in a case that presents important constitutional questions about which lower courts are divided, it seemed highly likely that the Court might decide to review this case.  The likelihood was enhanced because Frank’s petition was filed by Gene Schaerr, a former clerk of Chief Justice Warren Burger and Justice Antonin Scalia and a prominent anti-LGBT lawyer and partner in a Washington, D.C., firm that frequently litigates in the Supreme Court.  Furthermore, several amicus briefs were filed in support of the Petition, urging the Court to reaffirm the traditional doctrine that biological parents who are not found to be “unfit” always have custodial preference over persons who are not related to their children by biology or adoption.

Had the court taken this case, the current conservative majority might abrogate Brooke S.B. and similar decisions from other states that have been important precedents according equal standing to same-sex parents.  The denial of review means the law can continue to develop in the lower courts for now without intervention by the Supreme Court, which is at least a temporary victory for LGBT rights advocates.

The denial of review in the other case, Calgaro v. St. Louis County, 919 F.3d 1054 (8th Cir. 2019), was expected, since the conservative 8th Circuit found no merit to Anmarie Calgaro’s claim that she should be entitled to damages from individuals and institutions that had assisted her child, a transgender girl, when she decided to leave her unsupportive home before she had reached age 18 in order to transition.  Calgaro argued unsuccessfully in the federal district court in Minnesota and before the 8th Circuit that her constitutional rights as a mother were violated when the county and its public health director, the local school district and high school principal, and other private institutions respected her child’s wishes and kept Anmarie in the dark about where her child was living.  She also objected to being excluded from decisions about her child’s transition.

Of course, the case raises important issues, but the Supreme Court has shown great reluctance to get involved with cases that are effectively moot, and in this case E.J.K., the child in question, has long passed the age of 18, thus achieving adult status under Minnesota law and being entitled to emancipate herself from control by her parent.  Calgaro is represented by the Thomas More Society, a Catholic lawyers group that generally focuses on religious free exercise cases, occasionally in opposition to LGBT rights.  E.J.K. is represented by the National Center for Lesbian Rights.  Two conservative groups filed amicus briefs urging the Court to take the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Trump Administration Defies Court Disclosure Order on Eve of Previously Announced Trans Military Policy Implementation Date

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

On August 25, 2017, President Donald J. Trump issued a Memorandum to the Secretaries of Defense and Homeland Security, directing that effective March 23, 2018, transgender people would not be allowed to serve in the military. The Memorandum charged Defense Secretary James Mattis with the task of submitting an implementation plan to the White House by February 21.  Mattis submitted something in writing on February 23, but its contents have not been made public.

Meanwhile, the Department of Justice (DOJ) filed a statement late on March 22 with Judge Marsha J. Pechman of the U.S. District Court in Seattle, Washington, essentially refusing to comply with her Order issued on March 20 to reveal the identity of the “generals” and other “military experts” whom Trump purportedly consulted before his Twitter announcement last July 26 that transgender people would not be allowed to serve in any capacity in the armed forces. Karnoski v. Trump, Case 2:17-cv-01297-MJP (Defendants’ Response to the Court’s March 20, 2018, Order, filed March 22, 2018), responding to Karnoski v. Trump, 2018 US. Dist. LEXIS 45696 (W.D. Wash. March 20, 2018).

Judge Pechman is presiding over a lawsuit filed last fall by Lambda Legal and Outserve-SLDN challenging the policy. Pechman denied DOJ’s motion to dismiss that case and granted a motion by the plaintiffs for a preliminary injunction against the policy going into effect.  In order to grant the injunction, the judge had to conclude that it was likely the policy would be found to be unconstitutional and that an injunction pending the outcome of the case was necessary to protect the legitimate interests of people who would be adversely affected by the policy.  Karnoski v. Trump, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash. Oct. 10, 2017), motion to stay preliminary injunction denied, 2017 U.S. Dist. LEXIS 167232, 2017 WL 6311305 (W.D. Wash. Dec. 11, 2017); 2017 U.S. Dist. LEXIS 213420 (W.D. Wash. Dec. 29, 2017).

Then discovery in the case began, and DOJ refused in February to comply with the plaintiffs’ request for the identity of the “generals” and “experts” Trump claimed in his tweet to have consulted. DOJ argued that their defense in the case would not rely on any testimony or documentation from such individuals, since they would not be defending the August 25 policy announcement, but rather some new policy yet to be announced after Mattis submitted his recommendations.

Judge Pechman, ruling on a requested order to compel discovery filed by the plaintiffs, observed in an opinion issued on March 14 that “this case arises not out of any new or future policy that is in the process of being developed, but rather out of the current policy prohibiting military serve by openly transgender persons, announced on Twitter by President Trump on July 26, 2017, and formalized in an August 25, 2017 Presidential Memorandum.”  Karnoski v. Trump, 2018 U.S. Dist. LEXIS 43011 (W.D. Wash., March 14, 2018).

She continued, “Defendants cannot reasonably claim that there are no individuals likely to have discoverable information and no documents relevant to their claims and defenses regarding the current policy. President Trump’s own announcement states “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.”

Judge Pechman asked, “Which Generals and military experts were consulted? Which Service Chiefs and Secretaries provided counsel?  What information did they review or rely upon in formulating the current policy?  Were the court to credit Defendants’ Initial Disclosures and Amended Disclosures, the answer to these questions apparently would be ‘none.’”  The judge gave DOJ five days to comply.

DOJ responded by seeking “clarification” and raising the prospect that the president could invoke “executive privilege” to refuse to comply with the discovery request, in order to protect the confidentiality of presidential deliberations.

Responding to this argument early on March 20, Pechman issued a new opinion, 2018 U.S. Dist. LEXIS 45696. She wrote, “The Court cannot rule on a ‘potential’ privilege, particularly where the allegedly privileged information is unidentified,” and pointed out that DOJ had not invoked executive privilege in its earlier incomplete responses to the plaintiffs’ discovery requests, or in any of their prior motions to the court.  She pointed out that under the Federal Rules of Civil Procedure, “in order to assert privilege, a party must ‘expressly make the claim’ and ‘describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Furthermore, she noted, “While Defendants claim they do not intend to rely on information concerning President Trump’s deliberative process, their claim is belied by their ongoing defense of the current policy as one involving ‘the complex, subtle, and professional decisions as to the composition . . . of a military force . . .’ to which ‘considerable deference’ is owed.” Of course, claiming that the court should “defer” to “professional decisions” requires showing that this policy was adopted as a result of “professional decisions” and not based solely on the President’s political concerns.

The refusal to disclose what advice the president relied upon in announcing this policy leads to the inevitable conclusion either that such consultations did not take place, as Judge Pechman intimated on March 14, or if they did the president was likely acting against the advice of his generals and military experts.  Anybody reasonably informed on trends in the federal courts would have concluded by last summer that a revived ban on transgender service would be seriously vulnerable to constitutional challenge, and military commanders with a full year of experience in having openly transgender personnel would know that the policy implemented by the Obama Administration effective the beginning of July 2016 had not led to any problems with good order, morale, or substantial health care costs.

Judge Pechman gave DOJ until 5 p.m. Pacific Daylight Time on March 22 to comply with her discovery order. DOJ submitted its statement refusing to do so shortly before that deadline, once again arguing that because they did not intend to defend last summer’s policy pronouncements, they were standing on their position that they were not required to make any of the disclosures in dispute since they would not be calling any witnesses, documents or studies for the purpose of defending those policies.

As this is being written on March 23, there has been no indication by the White House that an implementation policy or a revised version of last summer’s policy is being announced. This is not surprising, since three other federal district judges as well as Judge Pechman issued preliminary injunctions last year against implementation of the policy that was to go into effect on March 23, and two federal courts of appeals (the D.C. Circuit and the 4th Circuit) rejected petitions by the Justice Department to stay two of the preliminary injunctions.

In fact, in light of the injunctions the Defense Department notified its recruitment staff in December about the criteria for enlistment of transgender applicants that would go into effect on January 1, 2018, and that process did go into effect, with a subsequent announcement by the Defense Department that at least one transgender applicant, whose name was not disclosed, had completed the enlistment process, marking the first time that an openly transgender individual has been allowed to enlist.

In a slippery move, DOJ may be trying to render the existing preliminary injunctions and lawsuits irrelevant by arguing that the policy announced in the August 25 Memorandum has never gone into effect and that, pursuant to Mattis’s undisclosed recommendations, it never will.  Meanwhile, thousands of transgender military personnel find their employment status in a state of uncertainty, as do transgender reserve members or military service academy students working towards graduating and joining the active forces.

Perhaps some hint of what the new policy will be can be found in the Defense Department’s enlistment policies announced in December, which would preclude enlisting transgender individuals unless they are medically certified to have been “stable” with respect to their gender identity for at least 18 months, and thus unlikely to seek to transition while in military service, either because they have already completely transitioned from the gender identified at birth to their currently identified gender or presumably have foresworn any intent to transition while in the military.

This disclosure controversy relates back to the likely motivation behind Trump’s initial July tweet, which came shortly after the Houses of Representatives had rejected an amendment to a pending Defense spending bill that would have blocked any spending for “sex reassignment surgery” for military personnel. There were reports at the time that congressional sponsors of that amendment warned the President that he did not have sufficient Republican votes in the House to pass the bill in the absence of such a provision.  Trump’s apparent solution to his immediate political problem was to bar all transgender military service, which would remove the possibility of any serving member seeking to access the military health care budget to pay for their transition, since such a request would lead to their immediate discharge under the policy he announced.  In other words, DOJ is attempting to bury the fact that Trump probably lied in his Tweet when he intimated that this change of policy was the result of recommendations from generals and military experts, but their stonewalling leads to Judge Pechman’s obvious conclusion stated on March 14.

Federal Court Refuses to Enjoin School District from Allowing Transgender Students to Use Facilities Consistent With Their Gender Identity

Posted on: September 1st, 2017 by Art Leonard No Comments

After rendering a bench ruling in mid-August in anticipation of the approaching resumption of school for the fall semester, U.S. District Judge Edward G. Smith released a lengthy opinion (running over 75 pages in LEXIS) on August 25, explaining why he was denying a preliminary injunction motion by plaintiffs in Doe v. Boyertown Area School District, 2017 U.S. Dist. LEXIS 137317, 2017 WL 3675418 (E.D. Pa.), in which the plaintiffs, cisgender students and their parents, sought to block the school district’s unwritten policy of allowing transgender students to use bathroom and changing room facilities consistent with their gender identity.

Alliance Defending Freedom (ADF), a non-profit law firm self-identified with conservative Christian principles which has filed similar lawsuits against other school districts, represents the plaintiffs in arguing that constitutional and common law privacy rights of the students are violated by the school district’s policy. In addition to local attorneys representing the school district, intervenors on behalf of defendants are represented by attorneys from the ACLU’s LGBT Rights Project and ACLU of Pennsylvania with cooperating attorneys from Cozen O’Connor’s New York and Philadelphia offices.

This case presents in many respects a mirror image of the lawsuits brought by transgender teens seeking the right to use bathroom and changing facilities at their high schools consistent with their gender identity. In both kinds of cases, testimony is presented that the plaintiffs have suffered emotional and physical harm because the schools’ usage policy interferes with their ability to use a convenient, non-stigmatizing restroom when they need it.  In this case, cisgender students affirmed that they were so traumatized at the prospect of encountering a “student of the other sex” – as they insist on calling transgender students – in the restroom or locker room, that they avoid using the facilities altogether during the school day, and the fear of such encounters haunts them throughout the day.  The court rejected the underlying premise, because Boyertown Area High School (referred to by the acronym BASH throughout the opinion) has provided numerous single-user facilities and alternative locations that would accommodate the plaintiffs’ concerns, and has made physical alterations in the common facilities to enhance the ability of individuals to avoid exposing themselves unclothed (fully or partially) to other students.  The plaintiffs’ position is to argue that transgender boys are really girls, and transgender girls are really boys, and the traditional of sex-segregated restroom and locker-room facilities most be preserved in order to protect the long-recognized privacy interests of cisgender people.  But to the court, the issue for decision in August 2017 had to be based on the facilities available for the upcoming academic year, as to which alterations and additions have changed the situation since the incidents during the 2016-17 school year that gave rise to the lawsuit.

The court sets out the factual allegations in great detail, including findings that this writer – having attended high school in the 1960s – found startling, such as a finding that few of the students at the high school actually use the showers after their gym classes. (When this writer attended high school, showering after gym was mandatory and closely monitored by the coaches, and the required freshman swimming course at his college prohibited students in the class from wearing anything in the pool.)  Another startling finding: that the high school, even before the recent renovations, had several single-user restrooms available to students, and not just in the nurse’s and administrative offices, so that any student seeking absolute privacy for their restroom needs could easily avail themselves of such facilities.

This lawsuit can be traced to several instances during the Fall Semester of 2016 when plaintiffs claim to have been startled, abashed, and disturbed to discover students whom they considered to be of the opposite sex in the locker room or restroom, leading them to approach administrators to complain and subsequently to involve their parents in further complaints. The transgender students were in these facilities after having obtained permission from school administrators who had determined that the students had sufficiently transitioned to make it appropriate. The administrators were determining, on a case-by-case basis, the students in question had transitioned sufficiently that it would have been awkward, unsettling, and perhaps even dangerous to them for them to use facilities consistent with the sex originally noted on their birth certificates.

The evidence presented to the court was that transgender students went through a transitional facilities usage period as they were transitioning in their gender presentation, generally preferring the single-user facilities until their transition was far enough along that they would feel more comfortable using facilities consistent with their gender expression and expected their presence would not cause problems. Indeed, there was testimony that when one transgender boy went into the girls’ restroom, he was chased out by the girls, who perceived him a boy and didn’t want him in there! Because surgical transition is not available under established standards of care before age 18, none of the transgender students at the high school had genital surgery, so their transitions were based on puberty-blocking drugs, hormones, grooming and dress.  One suspects that parents particularly objected to the presence of transgender girls who still had male genitals in the girls’ facilities, but there were no allegations that any transgender girl was exposing male genitals to the view of others in the common facilities.

When the issue arose and the administrators had to respond to a handful of protesting students and parents, they had long since received the “Dear Colleague” letter sent out by the Obama Administration’s Education and Justice Departments in May 2016, which advised that Title IX required public schools to accommodate transgender students by allowing them to use restrooms consistent with their gender identity and presentation. The Boyertown administrators, who did not seek authorization from the school board prior to problems arising, treated that letter as “the law of the land” and informally extended approval on a case-by-case basis to transgender students seeking permission to use appropriate facilities, a phenomenon which began to surface in that school district prior to the 2016 school year.  Not only did they refrain from adopting a formal written policy, but they also refrained from announcing the school’s policy to the student body or parents generally.  Thus, it is not surprising that some students were startled to encounter students who they considered to be of the “wrong sex” in their facilities.  The response of the administrators to the complaints was the this was the school’s policy and the students should just treat the situation as natural and adjust to it, which some students and their parents found unacceptable.

After the issue blew up during the 2016-2017 school year, the board of education voted 6-3 to back up the administrators, but there was still no formal written policy, and the school actually refused a demand by some parents to produce a written policy. Although the Trump Administration “withdrew” the Obama Administration’s interpretation of Title XI, the substitute letter issued in 2017 did not take a firm position on whether Title IX required such accommodations, merely asserting that the matter required further “study” and should be left to state and local officials to decide.  The Boyertown administrators decided to continue the policy they were following.  This lawsuit was first filed in March 2017, with an amended complaint adding more plaintiffs on April 18.

The complaint asserted claims under the 14th Amendment, Title IX, and Pennsylvania common and statutory law (the Public School Code, which mandates that public schools provide separate facilities for boys and girls).  They claimed a substantive due process violation (privacy), hostile environment sex discrimination in violation of Title IX, and Pennsylvania common law invasion of privacy in violation of public policy.

Judge Smith’s opinion thoroughly dissects the plaintiff’s arguments and carefully distinguishes the cases they cite as precedents, taking the perspective that the issue in deciding the motion for preliminary injunction is whether to preserve the status quo (the school district’s current policy of allowing transgender students, with permission given on a case-by-case basis depending upon their stage of transition and gender presentation, to the use the facilities with which they are comfortable), or to upset the status quo by requiring transgender students to restrict themselves to using single-user facilities or those consistent with their sex as identified at birth. There is a strong bias in considering preliminary injunctions in favor of preserving the status quo, so the plaintiffs had a heavy burden to persuade the court that they were likely to prevail on the merits of their claim in an ultimate ruling, and that the status quo policy inflicted real harm on them that would outweigh the harm that halting the policy would impose on the transgender students and the district.  As to both of those issues, Judge Smith found that plaintiffs had failed to make their case.

In particular, the school’s alteration and expansion of its facilities had significantly undermined the privacy arguments, and the court easily rejected the contention that the possibility of encountering one of about half a dozen transgender students in a high school with well over a thousand students had created a “hostile environment” for cisgender students. The court also noted that the common law privacy precedents concerned situations where the individual defendants had physically invaded the private space of the plaintiffs.  In this case, the individual defendants are school administrators, none of whom had personally invaded the private space of students using restroom and locker room facilities.

Judge Smith devoted a substantial portion of his opinion to recounting expert testimony, presenting a virtual primer on the phenomena of gender identity, gender dysphoria, and transition from a medical and social perspective. The opinion clearly and strongly rejects the plaintiffs’ argument that this case is about boys invading girls’ facilities or vice versa.  The tone and detail of the opinion reflect the considerable progress that has been made in educating courts and the public about these issues.

On the plaintiff’s likelihood of ultimately winning their case on the merits, Judge Smith pointed to the most definitive appellate ruling so far on the contested transgender bathroom issue, a recent decision by the U.S. Court of Appeals for the 7th Circuit involving a lawsuit by Ash Whitaker, a transgender student, against the Kenosha (Wisconsin) school district, which the school district asked the Supreme Court to review, coincidentally on the date that Judge Smith released this opinion.  No other federal circuit appeals court has issued a ruling on the merits of the constitutional and Title VII claims being put forth on this issue, although the 4th Circuit had in 2016 dictated deference to the Obama Administration’s interpretation in Gavin Grimm’s lawsuit against the Gloucester County (Virginia) school district, only to have that decision vacated by the Supreme Court last spring after the Trump Administration “withdrew” the Obama Administration’s “Dear Colleague” letter.  That case is still continuing, now focused on a judicial determination of the merits after the filing of an amended complaint by the ACLU.

Because ADF is on a crusade to defeat transgender-friendly facilities policies, it will most likely seek to appeal this denial of injunctive relief to the 3rd Circuit, which has yet to weigh in directly on the issue, although there are conflicting rulings by district courts within the circuit in lawsuits brought by transgender students.  ADF’s first step could be to seek emergency injunctive relief from the Circuit court and, failing that, the Supreme Court (which had during the summer of 2016 granted a stay of the preliminary injunction issued in the Grimm case).  If the Supreme Court grants the Kenosha school district’s petition, as seems likely, the underlying legal issues may be decided during its 2017-18 Term, before the Boyertown case gets to a ruling on the merits of plaintiffs’ claims.

Judge Smith was nominated to the district court by President Obama in 2013, winning confirmation from the Senate in 2014. A substantial part of his prior career involved service as a military judge, followed by a period of private practice and then service as a state court judge.  In his Senate confirmation vote he received more votes from Republicans than Democrats.  The Washington Post reported at the time that Smith was the first Obama judicial nominee to win more Republican than Democratic votes.

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

New Jersey Court Grants Name Change to Trans Teen in Case of “First Impression”

Posted on: July 1st, 2017 by Art Leonard No Comments

In what the court characterized as a matter of “first impression in this state,” New Jersey Superior Court Judge Marcia Silva granted a transgender teenager a change of name from Veronica to Trevor on March 17. “At the parties’ request,” wrote Judge Silva, “this court has used the parties’ real names.  It was also Trevor’s desire that his name be used in this opinion.”  The opinion was approved for publication on June 28.  The case is Sacklow v. Betts, 2017 N.J. Super. LEXIS 85, 2017 WL 2797437 (Middlesex County).

While this may have been a case of first impression in New Jersey in terms of published court opinions, Trevor is not the first transgender minor to get a court-approved name change. Gavin Grimm, a transgender boy from Virginia whose lawsuit against his school district to gain appropriate restroom access is still pending before the federal appeals court in Richmond even though he recently graduated from Gloucester County High School, received a legal name change, as have some other transgender teens who are involved in litigation against their schools.

The case was originally contested. Trevor’s parents were divorced in 2011 and have joint custody, although Trevor lives with his mother, Janet Sacklow.  His father, Richard Betts, consented to Trevor beginning hormone treatments in 2014, first to suppress menstruation and then, in 2016, testosterone to begin masculinizing his body.  However, Richard was opposed to the name change.  Janet filed the petition seeking the name change on Trevor’s behalf on September 12, 2016, naming Richard as the defendant.  He did not drop his opposition until after he heard Trevor testify during a hearing on March 7.

The biggest issue for Judge Silva was whether the court had any judgment to exercise in this case once the consent of both parents had been obtained. When an adult petitions for a name change, New Jersey law dictates that the court should grant the change unless there is some public interest in denying it, usually based on a finding that it is being done to perpetrate a fraud on creditors or to avoid criminal prosecution.  Unless one of those complicating factors is present, the court is normally not required to make any finding as to whether the name change is in the best interest of the applicant.

A quarter-century ago, in the case of Matter of Eck, 245 N.J. Super. 220 (App. Div. 1991), a New Jersey trial judge refused to grant a transgender adult’s petition for a name change, holding that “it is inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for the sole purpose of representing himself to future employers and society as a female.” The Appellate Division reversed this ruling, stating that “a person has a right to a name change whether he or she has undergone or intends to undergo a sex change through surgery, has received hormonal injections to induce physical change, is a transvestite, or simply wants to change from a traditional ‘male’ first name to one traditionally ‘female’ or vice versa.”  In other words, where an adult is concerned, the court has limited discretion to deny a name change, and in New Jersey, at least since 1991, it has been established that a name change to accord with gender identity is not deemed fraudulent as such.

The issue for minors is different, Judge Silva explained. There is a statute governing name changes for minors that has some factual inquiries as prerequisites similar to those governing adults, which did not seem to apply in Trevor’s case.  “It is uncontested,” wrote Silva, “that Trevor is not doing this with the purpose to defraud creditors or avoid criminal prosecution nor has Trevor ever been involved with the criminal justice system.”

But most name change petitions for minors involve situations where the parents are divorcing and the mother, who may have primary residential custody, is planning to assume her maiden name and wants her child to have the same last name as her. In such cases, where the father may be opposed, the court has to referee the situation by figuring out whether it is in the child’s best interest for a change of surname, and in a 1995 case a New Jersey court set out a list of factors to consider in such a case.  Of course, the decision to change a given name to reflect gender identity presents different issues, but Judge Silva concluded that in light of the court’s role as a guardian of the interests of children (referred to in the law as parens patriae) “the best interest of the child standard should apply,” while acknowledging that although the cases involving surnames “provide some guidance to this court, they do not fully address whether the proposed name change is in Trevor’s best interest.”

Judge Silva specified the following factors that she would consider in Trevor’s case: his age, how long he has used the name Trevor, “any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity,” the history of Trevor’s medical or mental health counseling, the name by which he is known in his family, school and community, his preference and motivation for seeking the name change, and whether his parents have given consent.

In this case, the court concluded that all these factors supported a finding that it was in Trevor’s best interest to approve the name change. Trevor had been considered a “quintessential tomboy” by his parents due to his lack of interest in typical girl activities as a youth, and they noticed when he entered the sixth grade “a change in his behavior” that led them to seek counseling for him, first with a child study team at school and then with a clinical social worker.  Ultimately Trevor announced his male gender identity to his parents and his desire to be called Trevor.  His gender dysphoria was diagnosed by a psychologist who continues to work with him through his transition.  Trevor testified that “the only people that still call him Veronica are his father, his stepmother and step-siblings” and that “he feels that the name [Trevor] better represents who he is and the gender with which he identifies.”

While noting the “constant changes that have occurred in the legal landscape as it relates to gender identity, sexual orientation and similar issues,” Silva wrote, “the issue of whether a transgender minor child should be permitted to change his or her name to better match his or her gender identity is a novel one for this court.” She pointed out that if Trevor had waited until his 18th birthday, the issue would be simpler.  Parental approval would not be required.  “However, children are unable to make such decisions on their own unless they have been emancipated.”

Judge Silva observed that the legislature has declared that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth” and, she wrote, “recognizing the importance of a name change is one of the ways to help protect the well-being of a transgender minor child. The name change allows the transgender minor child to begin to fully transition into their chosen gender and possibly prevent them from facing harassment and embarrassment from being forced to use a legal name that may no longer match his or her gender identity.”

One practical reason why Trevor wanted the change now was because, as he was about to turn 17, he would be applying for a driver’s license and applying to colleges. He was planning this summer to travel to China and would be getting a passport.  It was important, now that he is living as a boy, for him to be able to get these official documents with an appropriate name matching his identity, and a legal name change was needed to use this name on official documents.  Judge Silva counted this motivation in favor of granting the application.

The judge concluded, “Trevor has undergone hormone therapy and presents as a young man with facial hair, a muscular build, a head full of male-textured hair, and a deeper voice. To force him to legally keep the feminine name ‘Veronica’ would not be in his best interest.  Therefore, plaintiff’s motion to legally change Veronica’s name to Trevor is granted.”  Trevor was not seeking to change his surname, and will henceforth be known as Trevor Adam Betts.

Often transgender people seek an exemption from the legal requirement that court-ordered name changes be published in a newspaper of public record, but Trevor was not seeking such an exemption.   “Given the parties’ request that their real names be used in this decision, and the fact that Trevor is the subject of a documentary, this court does not find it necessary to protect his identity and thus will order plaintiff to comply with the publication and filing requirements.”

Trevor and his mother were represented in this proceeding by Jennifer Weisberg Millner of the firm Fox Rothschild LLP.

The current status of transgender legal rights in the U.S.

Posted on: June 8th, 2016 by Art Leonard No Comments

I was invited by Rabbi Sharon Kleinbaum to give a talk at Friday night services at Congregation Beit Simchat Torah on June 3 about the current status of transgender rights in the U.S.  CBST observes Gay Pride Month with a series of guest speakers on Friday nights, and the first Friday of the month was designated as “Trans Pride Shabbat” this year.  Below is a revised version of the text I prepared for that talk, although on Friday night I left this text in my folder and spoke extemporaneously.

This month we mark the anniversary of a major victory for transgender rights in the U.S. which has generally been overlooked. There was much celebration last June 26 when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples were entitled to marry and to have our marriages recognized by state and local governments under the 14th Amendment .  What few mentioned in those celebrations was that this decision implicitly overruled some terrible state court rulings from around the country holding that marriages involving transgender people were invalid under the state bans on same-sex marriage.  By removing any gender requirements for marriage, the Supreme Court was not only opening up marriage nationwide for same-sex couples, it was also making it possible for transgender people to marry the partners they love regardless of their sex, sexual orientation, or gender identity.  This would also cancel out any argument that a married person who was transitioning was no longer validly married or should be required to divorce their spouse. However, since every state now has no-fault divorce, of course if such a transition takes place and the couple decides to end their marriage, there would be no impediment under state law to their doing so.

Let’s consider the current legislative status of transgender rights protections in the U.S. As of today, 17 states expressly prohibit discrimination based on gender identity in employment, housing and public accommodations (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia and Puerto Rico).  Massachusetts prohibits gender identity discrimination in employment and housing, and the legislature is working on adding public accommodations, with the likely approval of the governor.  Most of these laws have specific exemptions for religious institutions, and some of the states also have Religious Freedom statutes that might be interpreted to provide exemptions for businesses whose owners have religious objections, but the question of such exemptions for businesses is not really settled and heavily argued.

Three states prohibit sexual orientation discrimination by statute but not yet gender identity discrimination: New Hampshire, New York and Wisconsin. In New York, however, the State Division of Human Rights earlier this year published a regulation stating that it interprets the New York Human Rights Law ban on sex discrimination to include discrimination because of gender identity, and the ban on disability discrimination to cover gender dysphoria, thus providing protecting to individuals who have not yet finished transitioning to the gender with which they identify.  That interpretation has not yet been tested in the courts, but it is consistent with some unfolding federal law developments and  also some older decisions by New York trial courts.

In addition, many states have now included specific protection on the basis of gender identity under their Hate Crimes statutes, which authorize enhanced penalties against people who perpetrate violent crimes against people because of their transgender identity. Also, many cities, towns, villages and counties around the country have passed local laws banning gender identity discrimination.  In states that lack such laws, many of the large cities have passed them, although there is a disturbing new trend in some of those states for the state legislatures to pass laws prohibiting localities from going beyond the provisions of the state civil rights laws.  Lawsuits are challenging these limitations.

At the federal level, two statutes, the Matthew Shepard – James Byrd Jr. Hate Crime Prevention Act and the Violence against Women Act, provide for enhanced penalties for those who commit crimes of physical violence against people because of their gender identity, but only when there is some connection to interstate activity.   The interstate activity requirement relates to Congress’s limited power to pass criminal statutes because Article I of the Constitution does not list criminal laws, so federal criminal statues are normally based on Congress’s power to regulate commerce between the states or to enforce other provisions of the Constitution.  In states that do not provide gender identity protection under their hate crimes laws, state prosecutors can refer cases to the US Justice Department, which may prosecute after determining that the crime implicates interstate commerce.  For example, if the weapon used to commit the crime had moved across state lines, or if the crime (such as kidnaping) involved transportation on an interstate highway, the federal Hate Crimes law could come into play.

Congress has not yet approved the Equality Act, which was introduced last year to amend all federal civil rights statutes to list gender identity and sexual orientation as prohibited grounds of discrimination. This would provide protection in the areas of employment, housing, public accommodations, credit, educational institutions, and all programs that receive federal financial assistance or are operated by federal contractors, and would also cover state government employment and federal employment.  The bill enjoys wide co-sponsorship among Democratic members of both houses, but has only a handful of Republican co-sponsors, and the Republican leadership in both houses has denied committee hearings or votes on the bill, so it cannot be passed unless there is a significant change in the political balance of Congress or in the views of the Republican Party.

The Obama Administration adopted executive orders last year that prohibit federal executive branch agencies and federal contractors from discriminating in employment or provision of services because of gender identity or sexual orientation. These orders are enforced administratively within the executive agencies, not in federal courts.  However, there has been recent activity in Congress placing the federal contractor protections into question.  An impasse between Republicans and Democrats has led to a stalemate over adoption of important pending spending bills and has generated substantial debate on the floor of the House of Representatives, because there are enough Republicans who will vote in favor of this protection (which essentially incorporates the terms of the President’s executive order into legislation) to add it to the pending bills as amendments, but then not enough votes from the Republican majority in the House to pass the resulting amended bills, which are generally opposed by the Democrats because they provide insufficient funding for federal agencies or place objectionable restrictions on the agencies’ actions.  This curious situation has brought the legislative authorization process to a temporary halt, and looms as a potential crisis as we move through this hotly contested congressional election cycle.

There are areas where there is much contention now in legislatures and the courts over transgender discrimination claims asserted under existing sex discrimination laws.   Is it possible that gender identity discrimination is already illegal, even when it is not mentioned as a prohibited ground of discrimination?  This is the hot issue of the day that may reach the Supreme Court next term.

In 1964, Congress considered a Civil Rights Act that was mainly intended to ban race and religious discrimination in employment and public services. However, the employment provision, Title VII, was amended in the House of Representatives to add “sex” as a prohibited ground of employment discrimination.  The term “sex” was not defined in the statute, and historical accounts show that the amendment was introduced by a Conservative Virginia representative, possibly as part of a strategy to keep the bill from being passed.  When Title VII went into effect in July 1965, some attempts were made to bring discrimination claims on behalf of gay and transgender people, but they were rejected by the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcement of Title VII, and in early decisions by the federal courts.

In 1972, Congress enacted Title IX of the Education Amendments Act, which forbids sex discrimination by educational institutions that receive federal funding. The U.S. Department of Education and courts interpreting Title IX have generally followed the interpretation of “sex” under Title VII.  In early cases they refused to use this statute to protect gay and transgender people from discrimination.  Other federal statutes addressing sex discrimination, including the Fair Housing Act and the Equal Credit Opportunity Act, also received narrow interpretations of their sex discrimination provisions.

In 1990, Congress passed the Americans with Disabilities Act. Some opponents of that bill complained that it might be hijacked by sexual minorities claiming that homosexuality or transsexuality could be deemed disabilities.  Republican Senator Jesse Helms from North Carolina obtained an amendment specifically stating that homosexuality  and “transsexualism” would not be considered disabilities for purposes of protection under this statute.

Interpretation of federal sex discrimination laws began to change after 1989, when the Supreme Court decided an important Title VII case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership at a national accounting firm because some of the partners thought she was not adequately feminine in her appearance and conduct.  One said she needed “a course in charm school,” and the head of her office told her she should wear make-up and jewelry and walk, talk and dress more femininely if she wanted to be a partner.  The Supreme Court said that this kind of sexual stereotype was evidence of a discriminatory motive under Title VII, and stated that Congress intended to knock down all such barriers to advancement of women in the workplace, signaling a broad interpretation of sex discrimination.

Over the following two decades, lower federal courts have used the Price Waterhouse decision to adopt a broader interpretation of “sex” under Title VII and other federal sex discrimination provisions. By early in this century federal appeals courts started to extend protection to transgender plaintiffs on the theory that they were suffering discrimination because they failed to conform to sex stereotypes.  Federal circuit and district courts in many different parts of the country have now found gender identity protection in cases under the Violence against Women Act, the Equal Credit Opportunity Act, and Title VII of the Civil Rights Act.  In an important breakthrough, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled that discrimination against a transgender state employee violated the Equal Protection Clause of the 14th Amendment, finding that the same standard used for sex discrimination claims should be applied to gender identity claims.

One of the key factors advancing this broad interpretation of sex discrimination was President Obama’s appointment of Chai Feldblum, then a law professor at Georgetown University, to be a commissioner at the EEOC during his first term. (She is now serving a second term at the EEOC.)  Commissioner Feldblum, the first openly lesbian or gay EEOC commissioner, argued effectively that the agency should adopt a broad interpretation of “sex” and apply it to discrimination claims by federal employees.  In three important rulings over the last few years, the EEOC held first that gender identity discrimination claims may be brought under Title VII, then that sexual orientation discrimination claims could also be brought under Title VII, and late last year that Title VII requirs federal agencies to allow transgender employees to use workplace restrooms consistent with their gender identity.  Building on these rulings as well as the growing body of federal court rulings, the Justice Department, the Department of Education, and other federal agencies with civil rights enforcement responsibility, have also begun to interpret their statutory sex discrimination laws more broadly.

The EEOC was ruling on internal discrimination claims within the federal government, but the agency has also undertaken an affirmative litigation strategy, filing briefs in cases pending in federal court brought by private litigants against non-governmental employers. In addition, the EEOC has filed its own gender identity and sexual orientation discrimination lawsuits in federal courts on behalf of individuals who filed charges against employers with that agency.

The Department of Education and the Justice Department have become involved in several cases brought by transgender high school students under Title IX, seeking access to restrooms consistent with their gender identity.

In a case that drew national attention last year, the Education and Justice Departments represented a transgender high school student in Illinois who was denied appropriate bathroom access and negotiated a settlement with the school district affirming the student’s rights. That attracted a federal court lawsuit against the government by Alliance Defending Freedom, a right-wing litigation group representing some objecting parents and students.  The lawsuit claims that Title IX does not apply to this situation and that their children’s “fundamental right of bodily privacy” was violated by the terms of the settlement.  It also claims that the Education and Justice Departments did not have authority to adopt this new interpretation of the law without proposing a formal regulation under the procedures established by the Administrative Procedure Act, which include a right of any interested member of the public to challenge a new regulation directly in the federal appeals courts.

This issue burst into wider public discussion when the city of Charlotte, North Carolina, passed an ordinance forbidding sexual orientation and gender identity discrimination, and made clear that transgender people in Charlotte would be allowed to use public and workplace restrooms consistent with their gender identity. The ordinance was set to take effect on April 1, 2016.  This stirred up a storm in the North Carolina legislature, which held a special session late in March to pass H.B. 2, a measure that preempted local anti-discrimination laws and provided that in government-operated buildings the restrooms would be strictly segregated by biological sex, meaning, for example, that a person can’t use a women’s restroom unless their birth certificate indicates that they are female.  This would apply to public colleges, universities and schools at all levels and in all other government buildings.

The main focus of debate was Republican legislators’ argument that allowing transgender women to use women’s restrooms would present a danger to women and children of possible sexual assault by heterosexual men declaring themselves to be transgender in order to gain improper access. The argument is patently ridiculous.  Seventeen states prohibit gender identity discrimination in public facilities, as do several hundred local jurisdictions, but there are no reports that these laws have enabled male sexual predators to gain access to women’s restrooms, and existing criminal laws against public lewdness and sexual assault can easily be used to prosecute such individuals.  In a alternative argument, the opponents of transgender restroom access are now pushing the theory argued in the new Illinois lawsuit: that allowing transgender people into restrooms consistent with their gender identity threatens the “right of bodily privacy” of other users to avoid exposing themselves to the view of transgender people.  Those making this argument reject the proposition that a transgender woman is genuinely a woman and a transgender man is genuinely a man, and argue that there is a tradition of sheltering people in restrooms from the gaze of members of the opposite sex.

A similar rejection of the reality of transgender identity can be found in a law recently passed by the state of Mississippi, which specifically authorizes people whose religious belief rejects transgender identity to refuse to treat transgender people consistent with their gender identity, including in places of business when it comes to things like restroom access. This reverts back to the views that used to be expressed by courts during the 20th century, rejecting the idea of gender transition and insisting that gender must be defined solely by a determination made at someone’s birth and entered on their birth certificate.

North Carolina’s H.B. 2 and the Mississippi law are now both the subject of multiple federal law suits disputing the bodily privacy argument and forcing courts to confront the question whether discrimination against transgender people violates the 14th Amendment of the Constitution, Title IX and Title VII.  While this dispute was pending, the Obama Administration threatened North Carolina with enforcement action under Title VII and Title IX, and distributed a letter in May to educational administrators nationwide advising them of the requirement to respect the rights of transgender students and staff under Title IX.  The administration’s action attracted new lawsuits, including one filed by the State of Texas on behalf of itself and a dozen other states challenging the administration’s interpretation of Title IX.

Meanwhile, during April the Richmond-based U.S. Court of Appeals for the 4th Circuit, ruling in a high school restroom case brought by a transgender boy under Title IX, held that the federal district court should defer to the Education Department’s interpretation of that statute, reversed the district court’s dismissal order, and sent the case back to the district court for further proceedings.  At the end of May, the full bench of the 4th Circuit rejected the School District’s petition for reconsideration of the case, and on June 7 the school district filed a notice with the 4th Circuit that it plans to petition the U.S. Supreme Court to review the decision.   This will probably result in a “stay” of the 4th Circuit’s ruling, which will delay further consideration by the district court of the plaintiff’s request for a preliminary injunction so that he can access the boys’ restroom facilities at his high school when classes resume in the fall.

Although legal commentators have suggested that it is unlikely the Supreme Court will agree to hear this case, it is at least possible. The notice the School Board filed focuses on two arguments: that the district court should not defer to the Education Department’s interpretation of Title IX, and that giving transgender students the restroom access they desire violates the “bodily privacy rights” of other students.  The first argument would require the Supreme Court to overrule a precedent that has been strongly criticized by the Court’s most conservative justices.  The second would require the Court to broaden the right of privacy under the Due Process Clause to encompass a right not to share restroom facilities with transgender people.

We should begin to see decisions in many of the pending lawsuits in the months ahead. One of the complications facing us now in getting a resolution to this controversy is that the Supreme Court is operating with only 8 members since the death of Justice Scalia in February.  Senate Republicans have refused to hold hearings and vote on President Obama’s nominee for the seat, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.  This vacancy may lead the Supreme Court to avoid taking for review controversial cases as to which it is likely to be sharply divided, such as the case from Virginia involving the transgender student’s discrimination claim under Title IX.  The court of appeals decision in that case was 2-1. The dissenting judge urged the school district to seek review from the Supreme Court.  Although there might be some delays in getting this issue to the Supreme, it appears likely that the next big LGBT rights case to go to that Court will focus on whether gender identity discrimination is a form of “sex” discrimination that can be challenged under existing sex discrimination statutes and the Equal Protection Clause of the 14th Amendment.

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.