Tag Archive for "gender identity" - Art Leonard Observations

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Federal Court Rules “Catholic Hospital” Owned by University of Maryland Medical Systems Can’t Refuse Gender-Affirming Surgery for Transgender Patients

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

Consolidation in the health care industry has resulted in some odd situations, as shown by a federal court ruling on January 6 that a “Catholic Hospital” that appears to be owned by a state university system must comply with the anti-discrimination requirements of the Affordable Care Act (ACA), which the court concluded requires the hospital to perform hysterectomies for transgender men seeking the operation for purposes of gender transition, because it performs hysterectomies for cisgender women as prescribed treatment for their medical conditions. Hammons v. University of Maryland Medical System Corporation, 2023 WL 121741, 2023 U.S. Dist. LEXIS 2896 (D. Md., Jan. 6, 2023).

Jesse Hammons, identified as female at birth, was diagnosed with gender dysphoria for which his doctor prescribed a hysterectomy (removal of the uterus) as part of his gender transition. He was scheduled for the procedure to take place at University of Maryland St. Joseph Medical Center, where his doctor scheduled the operation for January 6, 2020. When his doctor conferred with St. Joseph’s chief medical officer about the impending surgery a few weeks ahead of the scheduled date, he was told, “No, we cannot do transgender surgery at St. Joseph.” The hospital cancelled the procedure.

The contract in which University of Maryland Medical Systems purchased St. Joseph Hospital from a Catholic organization in 2012 provides that UMMS must operate St. Joseph “consistent with Catholic values” as set forth in the Ethical and Religious Directives for Catholic Health Services (ERD) promulgated by the U.S. Conference of Catholic Bishops. The Board of St. Joseph formally adopted the ERD as part of its operational policies. Also, UMMS made an agreement with the Archbishop of Baltimore that required St. Joseph Medical Center to comply with the ERD. The ERD categorically prohibits the performance of gender transition treatment at St. Joseph.

While University of Maryland is a state institution subject to constitutional non-discrimination requirements, UMMS argues that it is separately incorporated as a health care institution and is not part of the University of Maryland. However, it is a recipient of federal money through the Medicare and Medicaid programs, so it is also subject to the non-discrimination requirements under Section 1557 of the Affordable Care Act, which imposes a ban on discrimination on grounds prohibited by a list of federal laws, including Title IX of the Education Amendments of 1972, which forbids sex discrimination. Maryland is within the jurisdiction of the federal 4^th Circuit courts, which have ruled that Title IX forbids discrimination because of gender identity, consistent with the U.S. Supreme Court’s 2020 Bostock decision.

Mr. Hammons eventually got his hysterectomy performed at another hospital many months later, but decided to sue the University of Maryland, its Health System, and St. Joseph’s for violation of the First and Fourteenth Amendments and unlawful discrimination under the Affordable Care Act, seeking damages for his economic and emotional injuries. Hammons is represented by the ACLU and cooperating attorneys from the firm of Patterson Belknap.

The defendants moved to dismiss the constitutional claims, arguing that as state entities, they were immune from suit in federal court. Alternatively, the claimed that if they were regarded as private entities, they enjoyed ecclesiastical immunity as well as protection under the Religious Freedom Restoration Act.

The Supreme Court has embraced the view that the concept of “sovereign immunity” prohibits the states from being sued on federal claims in federal courts unless they have agreed to “waive” their immunity. Senior U.S. District Judge Deborah Chasanow concluded that this doctrine required her to dismiss the constitutional claims against UM, UMMS and St. Joseph’s. She appears to have considered them to be state actors.

On the other hand, as she found in her January 6 ruling, under the Affordable Care Act, a condition of a health care provider receiving federal money is their agreement to waive any sovereign immunity claim they might have as to enforcement of the ACA against them in federal court.

This set up interesting paradoxes in this case. By contract, UMMS is required to operate St. Joseph according to the ERD, which bans the performance of any procedure that terminates reproductive capacity unless it is required for medical purposes. St. Joseph argued that UMMS, not St. Joseph, was the recipient of federal funding, so St. Joseph should not be subject to the ACA requirement, but the court found that as a wholly-owned unit of UMMS, St. Joseph was a part of the federal funding recipient entity. Only fair, since St. Joseph, although operating on “Catholic principles,” was found to enjoy sovereign immunity from being sued in federal court on the constitutional claims because the court considered it to be part of the University of Maryland — which it claims it is not.

St. Joseph also argued that it had a valid defense under the Religious Freedom Restoration Act (RFRA), since being required to perform the procedure for Mr. Hammons would substantially burden its free exercise of religion. But wait, can an entity that has been found by the court to be a state actor with sovereign immunity against constitutional claims make a free exercise of religion claim? Which raises the further question whether would violate the Establishment Clause of the First Amendment for a state university to agree to operate one of its wholly owned medical centers based on religious principles. Hammons raised this issue in his complaint, but the judge avoided it by focusing on court decisions limiting the application of RFRA to cases brought by the government.

Although the Supreme Court hasn’t spoken to the issue, most (but not all) federal courts faced with the question have determined that RFRA applies only when the federal government is the plaintiff seeking to enforce a federal statute that burdens free exercise of religion by the defendant. In this case, the court has found (perhaps mistakenly?) that a unit of the state government (University of Maryland St. Joseph Medical Center) is the defendant. The plaintiff, Mr. Hammons, is a private citizen. Although the 4^th Circuit Court of Appeals hasn’t spoken to the issue, several trial courts within the district have sided with those courts who find RFRA inapplicable in litigation brought by a private citizen to enforce a claim under a federal statute. And, UMMS’s argument that it and St. Joseph are private, non-governmental actors, would make this a lawsuit between private parties with no government involvement. Judge Chasanow concluded that St. Joseph could not raise a RFRA defense, because it was not being sued by the federal government. (One might just as well say that an entity wholly owned and operated by a government agency may not raise a RFRA defense, because both the federal and the state governments are prohibited by the 1^st Amendment from “practicing” a religion under the Establishment Clause, but this would be irrelevant if one accepts UMMS’s argument contention that it is not part of the public University whose name it shares.)

Getting back to the easier issue in the case, Judge Chasanow had no trouble determining that refusing a hysterectomy to Mr. Hammons was discrimination in violation of the ACA. The 4^th Circuit ruled in 2020, after the Supreme Court’s Bostock decision, that sex discrimination prohibited by Title IX includes discrimination because of transgender status. Because the ACA forbids health care providers from discriminating on grounds prohibited by Title IX, St. Joseph may not discriminate because of transgender status to deny Hammons his hysterectomy unless it otherwise enjoys a religious exemption, which it was claiming as a defense.

St. Joseph tried to argue that it was not singling out transgender people, but rather applying a general principle that it would not perform operations to terminate reproductive capacity except for medical reasons. But it is now past the day when defendants can credibly argue that gender dysphoria is not a medical reason to perform a hysterectomy. Numerous courts have now rejected the claim that insurance policy provisions excluding coverage for “cosmetic procedures” can be used to block individuals from getting coverage for hysterectomies that are performed for the purpose of gender transition, and numerous federal courts have concluded, in the context of lawsuits by transgender prisoners seeking health care, that gender dysphoria is a serious medical condition.

The bottom line, of course, was that this scheduled procedure was cancelled explicitly because the operation was for the purpose of gender transition, so it could not logically be treated as other than discrimination due to Hammons’ transgender status, bringing it within the scope of the sex discrimination ban, assuming that Section 1557 applies to St. Joseph. (This is another point of significant contention, because Title IX is the source of the ACA non-discrimination requirement under Section 1557, and Title IX has a statutory exemption for religious educational institutions. Some have argued that this exemption should carry over to the ACA as well and cover religious health care institutions, a point of contention between the Trump Administration and the Biden Administration with dueling regulatory language.)

Senior Judge Chasanow was appointed by President Bill Clinton.

Washington Law Against Conversion Therapy Survives Constitutional Attack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Virginia Supreme Court Panel Orders Reinstatement of Gym Teacher Suspended for Publicly Opposing School District’s Proposed Policy on Transgender Students

Posted on: September 2nd, 2021 by Art Leonard No Comments

On August 30 a three-judge panel of the Virginia Supreme Court upheld a trial court’s order that Loudoun County School Board must reinstate Leesburg Elementary School gym teacher Tanner Cross, who was placed on paid leave after he spoke out at a School Board meeting against a proposed policy that would require teachers not to misgender transgender students. Loudoun County School Board v. Cross, Record No. 210584, Circuit Court No. CL21003254-00. The Court agreed with the trial judge that Cross’s statement probably enjoyed freedom of speech clause protection under the Virginia Constitution, applying principles developed by the U.S. Supreme Court under the 1^st Amendment concerning constitutional protection for public employee speech.

A recent Virginia statute, Code Section 22.1-23.3, mandated that the state’s Department of Education “develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools.” The statute also requires school boards to adopt policies “that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”

On May 25, 2021, the Board held a public meeting at which it discussed a proposed policy that would allow transgender students to use a name different than their legal name, allow them to use gender pronouns different from those corresponding to their “biological sex,” would require school staff to use students’ chosen names and gender pronouns, and would allow students to use school facilities and participate in extra-curricular activities consistent with their “chosen” gender identity.

Cross, who had taught at Leesburg Elementary for eight years, was strongly opposed to the proposed policy, and attended the public meeting to speak during the “public comment” period. He claimed to be speaking “out of love for those who suffer with gender dysphoria,” referencing a 60 Minutes feature about “young people who transitioned” and then “felt led astray because of lack of pushback, or how easy it was to make physical changes in their bodies in just three months. They are now de-transitioning,” he said. He stated opposition to the proposed policy because “it will damage children, defile the holy image of God.”

Cross said, “I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.”

Cross’s comments generated discussion among Leesburg parents on social media, and after one parent called the school authorities to ask that Cross not have any contact with her child, a supervisor told Cross that he was being placed on administrative leave with pay pending an “investigation.” Then the Assistant Superintendent sent a letter to Cross stating he was under investigation “for allegations he engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary,” and that he was banned from Loudoun County Public Schools property unless he got permission from the Leesburg Elementary principal. He was also informed he would not be permitted to speak on this topic at future Board meetings, and he was relieved from his normal duty of joining with other teachers to greet students as they arrived at the school. All Leesburg Elementary parents and staff received an email announcing his suspension.

Cross obtained representation from Alliance Defending Freedom (ADF), a litigation organization that frequently opposes LGBTQ rights on religious grounds. ADF filed a state court lawsuit claiming that the Loudoun County Board’s actions violated Cross’s free speech and free exercise of religion rights, and sought an immediate order that he be reinstated while the case is litigated. The trial court issued the order on free speech grounds, and the school board appealed. The court was less certain that Cross could prevail on his religious freedom claim, and decided that the school board’s conclusion that Cross would violate the policy based on his statements was premature, because he could avoid compromising his believes by avoiding the use of gender pronouns for students. (Such pre-trial orders are reviewed for “abuse of discretion” by a three-judge panel of the seven-member state Supreme Court.)

Under a 1968 U.S. Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, a public employee who speaks as a citizen on a matter of public interest is protected under the 1^st Amendment from retaliation by their government employer unless their speech disrupts the operation of the employee’s workplace. The Virginia Supreme Court pointed out that it has generally followed federal precedents in interpreting the free speech provision of the state constitution.

In this case, relying on parental discussion on social media and the phone calls that the district eventually received from several parents asking that their children not be exposed to Mr. Cross, the school board claimed that “disruption” of the elementary school justified its action of suspending Cross. It also pointed to his statement signaling that he could not comply with the requirement in the proposed policy that teachers use transgender students’ desired names and genders. The board had ultimately adopted the proposed policy, but there is no indication that there were any transgender children in Cross’s gym classes, although one of the parents who called to complain in response to Cross’s remarks is a transgender individual who reported that Cross’s remarks had upset her children.

The trial judge concluded that the school board had not presented sufficient evidence of actual disruption of the elementary school’s operations to justify suspending Cross for an “investigation” of his remarks, and the Virginia Supreme Court agreed, in a unanimous opinion by three of its members, Justices Arthur Kelsey, Stephen R. McCullough, and Teresa M. Chafin.

Cross’s state court lawsuit relies on Article I, Section 12 of Virginia’s Constitution, which essentially protects the same right of free speech as the federal First Amendment. The court has adopted a “two-step inquiry” to determine whether the government’s action violates this provision, asking first whether the public employee’s speech was on a matter of public concern, and second whether the employee’s interest in making his public comments outweighed the government’s “interest in providing effective and efficient services to the public,” which is essentially the same test the U.S Supreme Court applies under its Pickering decision.

Cross made his statements at a public Board meeting where the proposed transgender policy was being discussed. The court quote a decision by the U.S. Court of Appeals for the 4^th Circuit, which has jurisdiction over federal appeals from Virginia, holding that “both the teacher and the public are centrally interested in frank and open discussion of agenda items at public meetings.” Furthermore, the court pointed out, “In addition to expressing his religious views, Cross’ comments also addressed his belief that allowing children to transition genders can harm their physical and mental wellbeing. This is a matter of obvious and significant interest to Cross as a teacher and to the general public.” And, of course, the court noted that Cross was “opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition, a concept he rejects for secular and spiritual reasons.” Thus, the court concluded that Cross’s interest in making his points at the meeting was “compelling.” Indeed, concluded the court on this point, “We believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”

As against this, the court asserted that the defendants had “not identified an abuse of discretion in the circuit court’s conclusion that [the board’s] interest in disciplining Cross was comparatively weak.” In particular, the court rejected the board’s argument that the trial judge did not give adequate weight to the board’s contention that Cross’s statements had and would continue to have a disruptive effect on Leesburg Elementary School’s operations. The Supreme Court panel agreed with the lower court that the evidence of disruption was weak, and it pointed out that the Board’s argument that Cross had announced that he would not comply with the policy if it was enacted was not raised in the letter sent to Cross announcing his suspension.

Cross had followed up his public comments with an email to the Board and the school superintendent, stating his unwillingness to comply with the transgender policy. But, the court pointed out, the Board took no action based on that email, because, as a private communication rather than a public statement, it had not caused any particular disruption at the school. The court also commented that the Board had presented “no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children,” or that dealing with “managing fallout from Cross’ public comment” had taken up any significant amount of the principal’s time.

“The only disruption that Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” wrote the court. “However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.”

The court also noted two judicial opinions that would support the conclusion that “Cross has a potentially successful claim.” In one, Meriwether v. Hartop, the Cincinnati-based U.S. Court of Appeals for the 6^th Circuit found that an Indiana public university violated a professor’s 1^st Amendment free speech rights when it disciplined him for misgendering a student in class. In another, while finding that a teacher did not have a 1^st Amendment right to disobey a school’s transgender policy, a federal trial court in Indiana observed that “the teacher is not asserting that he was disciplined for criticizing or opposing the policy.”

Thus, the court’s opinion is limited in focusing on the right of the teacher to state his views at a public board meeting on a matter that was being considered by the board, without holding that Cross would necessarily enjoyed constitutional protection from discipline if he actually disobeyed the policy by misgendering students at the school, which would necessarily raise questions under a federal statute, Title IX of the Education Amendments of 1972, whose possible impact was not considered by the court in this case.

As of the end of August, this opinion had not been published on Westlaw or Lexis or the court’s website. We speculate that because it is a three-judge panel ruling on an interlocutory appeal, it would not be deemed suitable for publication as an opinion of the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 8^th 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 14^th 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 5^th 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 1^st 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 14^th 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 1^st 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 1^st 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 14^th 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 1^st 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 1^st Amendment. In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1^st 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 21^st 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 7^th 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 (8^th 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 9^th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8^th 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 9^th 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 9^th 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 8^th Amendment jurisprudence, a prison system will be found to violate the 8^th 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 9^th 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 5^th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8^th Amendment standards. The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1^st 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 1^st 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 4^th 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 9^th Circuit ruling sharpens the split with the 5^th and 1^st 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 8^th 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 8^th 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 9^th 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 9^th 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 4^th 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 14^th 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 7^th 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 4^th 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 3^rd 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.

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