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Federal Court Blocks Idaho Law Barring Transgender Women from Athletic Competition

Posted on: August 18th, 2020 by Art Leonard No Comments

David C. Nye, the Chief U.S. District Judge for Idaho, issued an injunction on August 17 to block enforcement of Idaho’s Fairness in Women’s Sports Act, which Governor Bradley Little had signed into law on March 30.  Hecox v. Little, 2020 U.S. Dist. LEXIS 149442.  Passage of this law made Idaho the first state to enact a statutory ban on transgender women and girls competing in women’s interscholastic sports at all levels.

 

The statute was not enacted in response to any particular incident or crisis involving transgender women in Idaho seeking to compete in women’s sports.  Rather, it appears to have been inspired by news reports about incidents in other states, and in particular a lawsuit filed by some cisgender girls in Connecticut who were upset that the interscholastic sports association in that state had adopted a policy of allowing transgender women to compete as women.

 

Judge Nye pointed out that various professional associations governing women’s interscholastic sports have adopted rules that transgender women would be eligible to compete in women’s sports after having undergone at least one year of hormone therapy to suppress their testosterone levels, based on evidence showing that this would not pose unfair competition to cisgender women.

 

Despite the lack of any sort of emergency, the Idaho legislature actually delayed by a few days joining the nationwide trend of moving legislative activity on-line in the face of the coronavirus pandemic in order to enact two anti-transgender bills: this one, which the Republican State Attorney General warned them would present legal issues under the Constitution and Title IX of the Education Amendments of 1972, and a bill reviving a ban on issuing new birth certificates for transgender individuals, passed in defiance of an injunction issued by the federal court against a similar previous statute.  It was clearly anti-trans month in the Idaho legislature.

 

In addition to excluding transgender women from competing in any organized or team sports activity that was designated for women only, the law empowered anybody to challenge the female sex of a participant, placing the burden on the challenged individual to provide evidence of their female sex according to a definition that in essence considers transgender women to be men.  The law also authorized anybody who claimed to have been harmed by a violation of the statute to sue for damages.

 

The ACLU filed suit on behalf of Lindsay Hecox, transgender girl interested in competing in women’s sports, and a cisgender girl allowed to proceed anonymously as Jane Doe, both challenging the law on constitutional and statutory grounds, and seeking a preliminary injunction to prevent the law from going into effect while the lawsuit plays out.  Jane Doe argued that the law subjected her to the possibility of being challenged as to her sex and subjected to invasive procedures.  The state responded with a motion to dismiss the case, and two cisgender women filed a motion to intervene as co-defendants, claiming that they would be harmed by being subjected to unfair competition from transgender women if the law was blocked.  Of course, the Trump Administrative, which is not a party to litigation involving a state law, filed a statement of interest, supporting Idaho’s right to exclude transgender women from competition.

 

Much of Judge Nye’s decision was taken up with the questions of whether the lawsuit was filed prematurely, whether the plaintiffs had standing to sue, and whether to grant the motion by the cisgender women to intervene.  He dealt with those issues at length, ultimately concluding that the plaintiffs did have a personal stake in the outcome of the case and that the law, as written, was subject to a pre-enforcement legal challenge.  The question of intervention was a closer call, but the judge resolved it in favor of allowing intervention.

 

However, he concluded that it was inappropriate to dismiss the case because this was a clear case of discrimination due to transgender status, and the Supreme Court’s June 15 decision in Bostock v. Clayton County clearly shows that such discrimination is discrimination “because of sex,” and thus subject to “heightened scrutiny” from the court in an Equal Protection challenge.   When a law is subject to heightened scrutiny, it does not enjoy the normal presumption of constitutionality. Rather, the state has a burden of justification, to show that the law substantially advances an important state interest.  Furthermore, as the Supreme Court held years ago in an opinion by Justice Ruth Bader Ginsburg finding the Virginia Military Institute’s men-only admissions policy to be unconstitutional, a law that discriminates because of sex will only survive judicial review if the state has an “exceedingly persuasive” justification for it.

 

In this case, however, such a justification was lacking, as Judge Nye found when he turned to the issue of a preliminary injunction.  Prior to the passage of the law there had been no official state policy restricting transgender women from competing as women, so this injunction was about maintaining the status quo while the lawsuit was under way.  Judge Nye weighed the factors courts are supposed to consider when determining whether to interfere with the legislature’s lawmaking power by blocking enforcement of a new statute, and resolved the issue against the state.

 

The state’s purported justification for the law was to “ensure equality and opportunities” for female athletes, but the court was not persuaded that law would substantially advance that goal.  “Ultimately,” Nye wrote, “the Court must hear testimony from the experts at trial and weigh both their credibility and the extent of the scientific evidence. However, the incredibly small percentage of transgender women athletes in general, coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they have undergone hormone suppression in particular, suggest the Act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.”

 

Taking note of existing rules in scholastic competition that transgender girls could not compete as women until they had undergone a year of testosterone suppression therapy, he could find little rationale for the law.  “In short, the State has not identified a legitimate interest served by the Act that the preexisting rules in Idaho did not already address, other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics,” he concluded. “As such, Lindsay is likely to succeed on the merits of her equal protection claim. Again, at this stage, the Court only discusses the ‘likelihood’ of success based on the information currently in the record. Actual success—or failure—on the merits will be determined at a later stage.”

 

However, he continued, “Instead of ensuring ‘long-term benefits that flow from success in athletic endeavors for women and girls,’ it appears that the Act hinders those benefits by subjecting women and girls to unequal treatment, excluding some from participating in sports at all, incentivizing harassment and exclusionary behavior, and authorizing invasive bodily examinations.  In the absence of any evidence that transgender women threatened equality in sports, girls’ athletic opportunities, or girls’ access to scholarships in Idaho during the ten years such policies were in place, neither Defendants nor the Intervenors would be harmed by returning to this status quo.”

 

Thus, the Idaho legislature is 0 for 2 on its decision to prolong the legislative session in the face of the pandemic, as a different federal judge has already reiterated that the injunction against the prior birth certificate law remains in effect as the lawsuit against the new birth certificate law – which was disingenuously worded to distinguish itself from the earlier one – continues.

 

The plaintiffs are represented by the ACLU.  Judge Nye, who had served as a state court judge for several years, was nominated to the district court by President Obama during his last year in office, 2016, when Mitch McConnell and the Republican majority were refusing to confirm any of Obama’s nominees.  But Nye, a graduate of Brigham Young University’s Law School with a good reputation who earned the ABA’s highest rating, was nominated on the recommendation of Idaho’s two conservative Republican senators, who then asked President Trump to re-nominate him in 2017, and he quickly became Chief Judge when an elderly colleague retired shortly thereafter.  So here is the irony: Just as Trump’s first Supreme Court nominee wrote the opinion protecting transgender people under Title VII, one of his first district court nominees has rejected the position of the Trump Administration’s statement of interest filed in this case.

Federal Court Blocks Trump Regulation Revoking Health Care Protections for Transgender People

Posted on: August 18th, 2020 by Art Leonard No Comments

U.S. District Judge Frederic Block ruled on August 17 that a new Trump Administration Rule that rescinded the Obama Administration’s Rule prohibiting gender identity discrimination in health care will not go into effect on August 18, its scheduled date, and he granted a preliminary injunction against the new Rule’s enforcement.  Judge Block sits in the U.S. District Court for the Eastern District of New York, in Brooklyn. Walker v. Azar, 2020 U.S. Dist. LEXIS 148141.

After President Obama signed the Affordable Care Act (ACA) into law in 2010, the Department of Health and Human Services (HHS) decided to adopt a rule providing an official interpretation of the non-discrimination requirements contained in Section 1557 of that statute.  Section 1557 incorporates by reference a provision of Title IX of the Education Amendments of 1972, which forbids discrimination because of sex in educational institutions that get federal funding.  In the past, HHS and federal courts have looked to decisions interpreting the sex discrimination provision in Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, in interpreting Title IX.

By the time HHS had finished writing its rule in 2016, both the Equal Employment Opportunity Commission and several federal appeals courts had interpreted Title VII to ban discrimination because of an individual’s gender identity.  The Obama Administration followed these precedents and included a prohibition on gender identity discrimination in its ACA rule.  Several states and a religious health care institution then joined together to challenge the rule before a federal district judge in Fort Worth, Texas, who was notoriously receptive to issuing nationwide injunctions against Obama Administration policies, and the court was true to that practice, holding that the inclusion of gender identity was contrary to the “original meaning” of the term “because of sex” when it was adopted by Congress in Title IX back in 1972.  The case is Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

The new Trump Administration rule that was challenged in the August 17 ruling was intended by the Department of Health and Human Services to codify the decision by district court in Franciscan Alliance.  Franciscan Alliance was issued in December 2016, just weeks before the Trump Administration took office.  Had Hillary Clinton been elected president, the incoming administration would likely have appealed the Fort Worth decision to the U.S. Court of Appeals for the 5th Circuit. But the Trump Administration informed the district court that it was not appealing and instead would not enforce the Obama Administration rule and would eventually replace it.

Judge Block emphasized this history as he set out his reasons for finding that Human Rights Campaign (HRC) and its volunteer attorneys from Baker & Hostetler LLP, were likely to succeed on the merits of their claim that the Trump Rule was both inconsistent with the ACA, and that HHS was “arbitrary and capricious” in adopting this new Rule and publishing it just days after the Supreme Court had ruled in Bostock v. Clayton County that discrimination against a person because of their transgender status was “necessarily discrimination because of sex.”

The Supreme Court had heard oral arguments in the Bostock case, which concerned the interpretation of Title VII, on October 8, 2019, while HHS was working on its proposed new rule.  The HHS attorneys knew that the Supreme Court would be issuing a decision by the end of its term, most likely in June 2020.  One of the three cases consolidated in Bostock involved a gender identity discrimination claim by Aimee Stephens against Harris Funeral Homes. The Equal Employment Opportunity Commission (EEOC) had sued the employer on Stephens’ behalf.  The 6th Circuit Court of Appeals ruled that Harris Funeral Homes violated Title VII by discharging Stephens for transitioning, and the Supreme Court granted review on the specific question whether discrimination because of transgender status violates Title VII.  HHS concedes in the “preamble” of its new rule that interpretations of Title IX (and thus Section 1157) generally follow interpretations of Title VII.

October 2017, then-Attorney General Jeff Sessions issued a memorandum to the Executive Branch explaining the Trump Administration’s position that bans on sex discrimination in federal law did not extend to claims of discrimination because of sexual orientation or gender identity.  Thus, although the U.S. Solicitor General normally represents federal agencies such as the EEOC when their decisions are appealed to the Supreme Court, that office actually joined in  arguing on behalf of Harris Funeral Homes, leaving it to the ACLU LGBT Rights Project to represent Aimee Stephens before the Supreme Court.

The Trump Administration was so confident that the Court would rule against Stephens that it decided to go ahead with its new Rule, effectively revoking the Obama Administration’s Rule, although the “preamble” did acknowledge that a decision by the Supreme Court in the Title VII case could affect the interpretation of Section 1557.  LGBTQ rights advocates waited impatiently for a ruling in the Bostock case as the Court began to wind up its Term in June.  The Trump Administration was no more patient, announcing its new Rule a few days before the Supreme Court announced its decision in Bostock, apparently assuming that the Court would rule against Stephens.  Without publicly reacting to the Supreme Court’s opinion, or even revising its new Rule to acknowledge that the Trump Administration’s interpretation of “discrimination because of sex” had been rejected by the Supreme Court (in an opinion by Trump’s first appointee to the Court, Justice Neil Gorsuch), HHS went ahead and published the new Rule five days later.

Over the following weeks, challenges to the new Rule were filed in four different federal courts.  HRC filed suit on behalf of two transgender women who had encountered discrimination from health care institutions covered by the ACA.  Judge Block found that their experiences gave them formal standing to challenge the new Rule. Judge Block reached his decision the day before the new Rule was to go into effect.

He found that the well established practice of following Title VII interpretations in sex discrimination cases was likely to be followed under the ACA, just as it was under Title IX, and thus the plaintiffs were likely to succeed in their claim that the new Rule was inconsistent with  the statute.  He noted that just two weeks earlier, the 11th Circuit Court of Appeals had followed the Bostock decision in finding that a Florida school district violated Title IX by denying appropriate restroom access to a transgender student.

Furthermore, the failure of the new rule, published after the Bostock decision, to mention that ruling or to offer any reasoned explanation why it should not be followed, was likely to be found to be “arbitrary and capricious,” so the adoption of the new Rule probably violated the Administrative Procedure Act (APA), the federal law that details how federal agencies are to proceed in adopting new rules and regulations or rescinding old ones.

Because of the December 2016 ruling in Franciscan Alliance and the subsequent non-enforcement policy by the Trump Administration, the Obama Administration’s Rule has not been enforced by HHS since December 2016.  But the ACA allows individuals who suffer discrimination to sue on  their own behalf to enforce the statute, and there have been numerous lawsuits under Section 1557 successfully challenging exclusion of transgender health care from coverage under health insurance policies that are subject to the ACA.

Judge Block’s stay of the effective date and injunction against enforcing the new Rule gives the green light to HHS to resume enforcing Section 1557 in gender identity discrimination cases consistent with the Bostock ruling.  While there are probably plenty of career agency officials in the HHS Office of Civil Rights who would like to do so, any significant effort in that direction seems unlikely so long as Trump remains in office.  For now, the main impact of Judge Block’s order will be to clear a potential obstacle for transgender litigants under Section 1557, as the opinion persuasively explains how Justice Gorsuch’s reasoning in Bostock compels protecting transgender health care patients under the ACA.

The  practical effect of Judge Block’s ruling now is to place the burden on HHS if it wants to  continue defending its new Rule.  HHS must provide a reasoned explanation to the Court about why the Bostock interpretation of “discrimination because of sex” should not be followed under Section 1557.  The simplest way for HHS to proceed consistent with the court’s order would be to strike those portions of the preamble discussing this subject, and to substitute a simple statement that Section 1557’s ban on discrimination because of sex includes claims of discrimination because of sexual orientation  or gender identity consistent with  the U.S. Supreme Court’s interpretation of similar statutory language in the Bostock case.

North Carolina Federal Court Refuses to Dismiss Challenge to North Carolina’s Exclusion of Coverage for Gender Transition from State Employee Medical Plan

Posted on: April 5th, 2020 by Art Leonard No Comments

On March 11, U.S District Judge Loretta C. Biggs denied the state’s motion to dismiss a lawsuit brought by Lambda Legal claiming that the State Health Plan’s categorical exclusion of coverage for treatment sought “in conjunction with proposed gender transformation” or “in connection with sex changes or modifications” violates the Equal Protection Clause, Title IX, and Section 1557 of the Affordable Care Act (ACA). Kadel v. Folwell, 2020 WL 1169271, 2020 U.S. Dist. LEXIS 42586 (M.D.N.C.). The state university defendants had moved to dismiss the Title IX claim, and the State Health Plan defendants had moved to dismiss the Equal Protection and ACA claims. The plaintiffs are all current or former employees of the university defendants, or dependents of university employees, which were all enrolled in the Plan and are the parents of transgender individuals who have been diagnosed with gender dysphoria and are seeking treatment that is categorically excluded from coverage under the Plan.

The plaintiffs jointly allege that since the 1980s the Health Plan covering employees of the state university and their dependents has denied coverage for medically necessary treatment if the need stems from gender dysphoria, as opposed to some other condition. Thus, a cisgender woman’s medically necessary mastectomy would be covered, but a transgender man’s mastectomy for purpose of gender transition would not be covered. With the exception of 2017, this exclusionary policy has been in effect. Third party administrators retained by the employers to administer the plans – Blue Cross Blue Shield of North Carolina (claims administrator) and CBS Caremark (pharmaceuticals) – sell this kind of coverage to other employers, this it would be possible for the state to include such coverage using their current administrators, who are experienced in dealing with such claims.

The statutory causes of action (Title IX and ACA) would require the court to conclude that discrimination because of gender identity is covered under the statutory prohibition of sex discrimination, while the constitutional claim would require a finding that gender identity discrimination claims are actionable under the Equal Protection Clause of the 14th Amendment.

Judge Biggs turned first to the statutory claims in her analysis. She first rejected the state university’s claim that the suit should not be against them, because the state government dictates the content of their employee benefits plans. She found that the defendants “offer” the plan to plaintiffs, and “participate” (or participated) in its availability. “Indeed,” she wrote, “had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds, at this stage, those facts provide a sufficient nexus between the alleged injuries the University Defendants.” Also, responding to the University’s argument that a ruling against them would not redress the plaintiffs’ claims because the defendants are bound by state policy, Biggs wrote that “there are other wahys in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for – and ‘personally would benefit in a tangible way’ from – an award of damages.” Further, she noted, the university defendants might offer supplemental coverage beyond what the state Plan provides. She also rejected defendant’s arguments that since some of the Plaintiffs are not themselves transgender, their injuries are only indirect, because the minor plaintiffs’ “only ties” to the university are through their parents’ employment. Judge Biggs found that the parents were in this case within the class of plaintiffs protected by Title IX.

Turning to the argument that gender identity claims are not cognizable under Title IX, Biggs took note of the fact that the Supreme Court was considering whether Title VII covers gender identity discrimination claims in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, which was argued on October 8, 2019, and had not been decided yet. The defendants argued that this case should be put “on hold” until a Supreme Court ruling was issued. “Because courts in this circuit often look to Title VII when construing like terms in Title IX,” she noted, “the Supreme Court’s decision could potentially impact the viability of the Title IX claim in this case. At this time, however, this Court is left to make its own determination as to whether discrimination ‘on the basis of sex’ encompasses discrimination on the basis of transgender status,” and she noted Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) and M.A.B. v. Board of Education of Talbot City, 286 F. Supp. 3d 704 (D. Md. 2918), in which other district courts also within the 4th Circuit have ruled that such claims are covered by Title IX. Biggs wrote that she “agrees with their reasoning and follows it here.” She also noted that some other district courts in other circuits have faced similar arguments challenging transgender exclusions under state employee benefit plans, and have ruled against the employing states in those cases.

“University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (although State Defendants do),” she wrote. “Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. There is no dispute that ‘a recipient of federal funds may be liable in damages under Title IX only for its own misconduct; the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case.” Biggs held that “at this stage” in the litigation, the plaintiffs’ allegations concerning the university defendants’ role in providing benefits to their employees are sufficient both for standing and for the Title IX claim, and denied the motion to dismiss the Title IX claim.

Turning to the ACA claim, the state defendants argued sovereign immunity. “Section 1557 does not purport to condition a state’s acceptance of federal funding on a waiver of sovereign immunity,” she wrote. “Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (CREA), Congress explicitly stated that a state shall not be immune from suit in federal court ‘for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal assistance.” The 4th Circuit found clear congressional intent to waive the state’s sovereign immunity if they accepted money in programs that prohibit discrimination. The state’s response was that the lack of mention of gender identity or transgender status in Section 1557 shows that North Carolina did not “knowingly” waive its sovereign immunity with respect to discrimination claims on these bases. Disagreeing, Biggs wrote that the state’s potential exposure to such suits should not have been “surprising,” because “courts across the country have acknowledged for decades that sex discrimination can encompass discrimination against transgender plaintiffs. Further, as a general matter, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1999). She asserted that surely the state would agree that Title IX covers sexual harassment claims, even though the word “harassment” does not appear in the statute. “By the same token, Section 1557 need not include the precise phrasing State Defendants demand to provide sufficient notice of a condition of waiver.”

Turning to the constitutional claim, asserted against specific state officials in their official capacity, she found convincing the case law supporting heightened scrutiny for gender identity discrimination claims as being essentially sex discrimination claims. “On its face,” she wrote, “the Exclusion bars coverage for ‘treatment in conjunction with proposed gender transformation’ and ‘sex changes or modifications.’ The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on ‘medical diagnoses, not . . . gender.’ However, the diagnosis at issue – gender dysphoria – only results from a discrepancy between assigned sex and gender identity. In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.” And, quoting from United States v. Virginia, 518 U.S. 515 (1996), she wrote, “A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an ‘exceedingly persuasive justification’ for the classification.” [Thank-you, Justice Ginsburg!] Judge Biggs found that at this stage in the litigation, “State Defendants have failed to satisfy this demanding standard” and, in fact, “the only justification presented thus far is that the Exclusion ‘saves money.’ Under ordinary rational basis review, that could potentially be enough to thwart Plaintiffs’ claim. However, when heightened scrutiny applies, ‘a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens,’” quoting from Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).

Next, Judge Biggs rejected the state defendants’ argument as a ground for dismissal the plaintiffs’ failure to join the Health Plan’s Board of Trustees as a required party, as they would have to vote to make any change in the Plan that would be required to repeal the Exclusion. She found that the state defendants “share primary responsibility for the operation and administration of the Plan” so an award of declaratory, injunctive and monetary remedies against them would “give plaintiffs all the relief they seek.”

Finally, rejecting defendants’ request that the action be stayed pending the Supreme Court’s ruling in Harris Funeral Homes, Judge Biggs pointed out that “the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the ‘harm’ to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.” This is obvious. Since discovery hasn’t begun yet, there is no chance this case would be ready for a motion for summary judgment for many months, and the Supreme Court will likely rule in Harris by the end of June. “Judicial economy is, of course, a consideration,” wrote Biggs. However, this case is in its infancy, and it may be months before a decision issued in Harris – a substantial delay for those seeking to vindicate their civil rights. Given the ongoing harm to Plaintiffs and Defendants’ failure to present ‘clear and convincing circumstances’ outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.”

Thus, pending motions to dismiss are all denied. As of the end of March, the defendants had not petitioned the 4th Circuit for a stay.

Counsel for plaintiffs include Deepika H. Ravi, of Harris, Wiltshire & Grannis LLP, Washington, DC; Meredith T. Brown and Tara L. Borelli, Lambda Legal Defense And Education Fund, Inc., Atlanta, GA; Noah E. Lewis, of Transgender Legal Defense & Education Fund, Inc.; Omar F. Gonzalez-Pagan, Lambda Legal Defense And Education Fund, Inc., New York, NY; and Amy E. Richardson, Wiltshire & Grannis LLP, Raleigh, NC (local counsel).

Texas Federal Court Vacates Transgender Protection under Obamacare

Posted on: October 18th, 2019 by Art Leonard No Comments

Reed O’Connor, a federal trial judge in the Northern District of Texas, ruled on October 15 in Franciscan Alliance v. Azar, 2019 U.S. Dist. LEXIS 177871, 2019 WL 5157100, that the Obama Administration’s regulation providing that the Affordable Care Act (ACA, a/k/a “Obamacare”) prohibits health care providers and institutions from discriminating against patients because of “gender identity” or “termination of pregnancy” is invalid.  The judge “vacated” the rule, effectively ordering the government not to enforce it, although he declined to issue an injunction to that effect.

Government agencies and courts in several states have relied on the regulation, “Nondiscrimination in Health Programs & Activities,” 45 C.F.R. Sec. 92, in several important cases, ruling, for example, that state Medicaid programs and the insurance coverage that states provide to their employees had to provide coverage for medically necessary gender transition treatment.  The regulation has also been invoked in lawsuits challenging the refusal of private employers to cover such treatment, and theoretically also could be invoked to challenge refusals by health care providers to perform abortions, although it is uncertain whether it could apply to such refusals.

O’Connor’s ruling was not a real surprise, since he issued a “nationwide” preliminary injunction barring the government from enforcing the regulation on December 31, 2016, just as it was set to go into effect on January 1, 2017.  Consequently, it is uncertain how federal enforcement proceedings would have fared in the courts.

The Department of Health and Human Services (HHS) formally adopted the regulation on May 16, 2016, as an official interpretation of the ACA’s anti-discrimination language, which mentions neither gender identity nor abortions.  Unlike most federal anti-discrimination statutes that list the prohibited grounds of discrimination, the ACA instead listed four other federal anti-discrimination laws, and provided in Section 1557 that “an individual shall not, on the grounds prohibited under” the listed statutes, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.”

The statutes listed were Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin in programs that received federal funds, Title IX of the Education Amendments of 1972, which prohibits sex discrimination by educational institutions that receive federal funds, the Age Discrimination in Employment Act, which prohibits discrimination against people aged 40 or older by companies that employ 20 or more people, and Section 504 of the Rehabilitation Act of 1973, which prohibits unjustified discrimination against people with disabilities by programs that receive federal funding.  HHS interpreted Title IX’s sex discrimination ban to include discrimination against an individual because of their “gender identity” or “termination of a pregnancy” in the context of the ACA.

Franciscan Alliance, an operator of faith-based health care institutions, and two other private sector plaintiffs, joined together with eight states to file a lawsuit in the U.S. District Court in Wichita Falls, Texas, shortly after the regulation was published, challenging HHS’s adoption of the regulation under the Administrative Procedure Act (APA) and the Religious Freedom Restoration Act (RFRA).  Franciscan Alliance specifically alleged that providing gender transition treatment violated its religious beliefs, and that the regulation would require them to perform abortions, also against their religious beliefs. The state plaintiffs, as well as Franciscan Alliance, argued that the regulation was not based on a legitimate interpretation of the discrimination prohibited by Title IX. They also raised constitutional arguments that the court didn’t have to address, since it found the regulation to be invalid under these two federal statutes.

Concerned that the new regulations might be struck down, the American Civil Liberties Union of Texas (ACLU) and River City Gender Alliance (RCGA) filed motions in September 2106 to intervene as parties to help defend the regulation.  Judge O’Connor reserved judgment on this motion pending the filing of answer to the complaint by the federal government, but allowed ACLU and RCGA to participate as amicus parties and file briefs on the pending preliminary injunction motion.

Judge O’Connor developed a reputation during the Obama Administration for his willingness to issue nationwide preliminary injunctions against Obama Administration initiatives, usually at the behest of conservative state governments or faith-based organizations.  Because he is the only judge on the U.S. District Court for the Northern District of Texas who is assigned to sit several days a month in the satellite courthouse in Wichita Falls, Texas, a small city with a population of about 100,000 (roughly the size of South Bend, Indiana, for example), Judge O’Connor’s judicial propensities help to explain why several cases of national importance were filed by conservative opponents of the Obama Administration in that rather obscure courthouse.  Lawyers call this “forum shopping” — seeking out a particular court or judge because they are highly likely to rule in favor of the plaintiffs based on their past performance.

While this litigation was going on, Judge O’Connor became embroiled in a Title IX lawsuit brought by states challenging the Obama Administration’s interpretation guidance to school districts concerning their obligations to transgender students.  In that litigation, he found that the plaintiffs were likely to prevail on their argument that Title IX did not apply to gender identity discrimination, issuing a nation-wide preliminary injunction barring the Education Department from requiring school districts to refrain from discriminating against transgender students.

When he issued his preliminary injunction in this case, O’Connor concluded that the plaintiffs were likely to succeed in showing that the ban on sex discrimination in Title IX did not extend to gender identity discrimination (as he held in the schools case), and that failing to incorporate religious exemption language from Title IX in the regulation violated the intent of Congress in its method of specifying prohibited grounds for discrimination under the ACA.  He also ruled that it was likely that attempts by the  government to enforce the regulation against faith-based health care providers would burden their free exercise of religion without sufficient justification under RFRA.  If the agency exceeded its statutory authority, its adoption of the regulation would violate the APA.

Just weeks after O’Connor issued his preliminary injunction, Donald Trump took office and appointed new leadership for the various federal agencies that interpret and enforce the federal anti-discrimination statutes.   On May 2, 2017, the new leadership at HHS filed a motion asking the court to “remand” the challenged regulation back to the agency, because the new administration was going to be reviewing all of the Obama Administration’s regulatory actions and might make the case “moot” by rescinding the regulation.  Judge O’Connor granted that motion on July 10, 2017, and said he would “stay” further proceedings in the case while HHS decided whether to revoke the regulation.

Surprisingly, in light of Attorney General Jeff Sessions’ memorandum from the fall of 2017 opining that federal laws banning sex discrimination do not ban gender identity discrimination, as well as the Trump Administration’s repeatedly articulated hostility toward abortion, HHS has not yet undertaken the formal steps necessary under the APA to repeal or amend the challenged regulation, and evidently Judge O’Connor finally lost patience and decided to issue a ruling on the merits.  Having received briefing by the parties on the legal questions involved, he determined that he could render a ruling on the government’s motion for summary judgment, producing the decision published on October 15.

He referred back to his earlier preliminary injunction ruling, doubling down on his conclusion that when Congress passed Title IX in 1972, it knew that the EEOC and federal courts had been rejecting transgender individuals’ sex discrimination claims under Title VII of the Civil Rights Act, so as of 1972 Congress would believe that passing a new federal statute outlawing sex discrimination would not outlaw discrimination because of gender identity.

Getting further into the RFRA analysis, he found that the government does have a compelling interest in prohibiting discrimination in health care, but that the regulation did not impose the “least restrictive alternative” as required by that statute. Because there are non-faith based health care providers who will provide gender transition treatment and abortions, he wrote, it is not necessary to burden faith-based providers in order to make it possible for individuals to get those treatments.  They can just go elsewhere.

Thus, Judge O’Connor extended his earlier opinion to hold, as a final ruling on the merits, that the inclusion of “gender identity” and “termination of pregnancy” in the regulation exceeded the interpretive authority of HHS in violation of the Administrative Procedure Act, and that enforcement of those provisions against faith-based health care providers would violate their rights under RFRA.

Judge O’Connor found that because the defendants (the Trump Administration) was no longer affirmatively defending the regulation, ACLU and RGCA were entitled as of right to intervene as co-defendants in order to provide a defense. This was an important step, since only an actual party can appeal a decision. However, Judge O’Connor pointed out that the intervenors will have to establish individual standing to do so if they want to take this case to the 5th Circuit Court of Appeals. The district court could just rely on their allegations that they have members who would be adversely affected by the regulation being struck down in order to grant their intervention motion, but their standing to appeal the ruling might be challenged in the 5th Circuit which, for example, has vacated a ruling against Mississippi’s draconian anti-LGBT statute on grounds that the organizational plaintiffs did not have “standing” to challenge the law before it had gone into effect.

Judge O’Connor did not strike down the regulation in full, merely holding that the inclusion of “gender identity” and “termination of pregnancy” was not authorized by the statute and thus that those portions of the regulation are “vacated.”  He refrained from issuing a nationwide injunction, presumably because the defendant – formally, the Trump Administration – is clearly going to comply, since it is no longer arguing that the regulation is lawful in light of the Sessions memorandum and the position it is arguing in the Harris Funeral Homes case at the Supreme Court.

O’Connor’s action immediately raises the question whether his ruling is binding outside the Northern District of Texas.  Striking down the “unlawful” portions presumably does not just mean for purposes of one federal district.  Normally, the government would appeal such a ruling, but in this case, it seems unlikely that HHS or the Justice Department is going to appeal this ruling, which leaves that determination up to the ACLU of Texas and RGCA, in light of all the circumstances, including a national election just a year from now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Court Permanently Enjoins Wisconsin Medicaid from Enforcing State Statutory Exclusion of Coverage for Gender Transition

Posted on: August 26th, 2019 by Art Leonard No Comments

Last year, U.S. District Judge William M. Conley granted a preliminary injunction to several named plaintiffs in a case challenging a 1996 amendment to Wisconsin’s Medicaid statute under which transgender Medicaid participants were denied coverage for their gender transitions.  At that time, the court had concluded that the plaintiffs were likely to win their case on the merits and that delaying their access to gender transition coverage pending a final ruling on the merits would cause them irreparable injury, far outweighing any harm to the state.  The court refused to stay its preliminary injunction pending a possible appeal.  On August 16, Judge Conley issued his final ruling on the merits in the case, having in the interim certified it as a class action extending to all transgender people in the state who relied on Medicaid for their health care coverage, and making the injunction permanent.  The judge ordered the parties to “meet and confer” within 14 days on the scope of relief and final wording of an injunction.  Flack v. Wisconsin Department of Health Services, 2019 U.S. Dist. LEXIS 139388, 2019 WL 3858297 (W.D. Wis., Aug. 16, 2019).

Judge Conley premised his ruling on three sources of law: Section 1557 of the Affordable Care Act, the “Availability and Comparability” provisions of the Medicaid Act, and the Equal Protection Clause of the 14th Amendment.  Providing three independent and equal bases for the ruling makes it eminently defensible should the state decided to seek review at the 7th Circuit.  In this connection, the 7th Circuit has previously found thta government policies that disadvantage transgender people may violate the Equal Protection Clause, and it has adopted an interpretation of Title IX of the Education Amendments of 1972 that accepts the contention that a federal law banning sex discrimination would extend to gender identity discrimination, although this holding might be adversely affected by a Supreme Court ruling under Title VII in a pending case from the 6th Circuit, R.G. & G.R. Harris Funeral Homes v. EEOC, to be argued on October 8.

Judge Conley accepted the plaintiffs’ contention that the standards of care for gender dysphoria published by the World Professional Association of Transgender Health (WPATH), most recently updated in 2011, as supplemented by clinical guidelines on hormone treatment for gender dysphoria published in 2017 by the Endocrine Society, represent a medical consensus recognized by numerous professional health care associations and many, many court decisions, defining the standard of care in the context of any dispute about medically necessary treatment for gender dysphoria.  There is near-unanimity among federal courts at this point that gender dysphoria can be a serious medical condition and that, depending on the symptoms of the individual transgender person, various forms of treatment involved in transition, including hormone therapy and gender confirmation surgery (GCS), may be medically necessary.  The published standards emphasize, as does Judge Conley, that not every person who identifies as transgender experiences gender dysphoria (a “disconnect” between their gender identity and their anatomy), and that there is a range of severity, so not every person with gender dysphoria will necessarily seek GCS.  The Medicaid program’s coverage should depend upon competent medical professionals diagnosing gender dysphoria in the individual case and determining that hormone therapy and or GCS are medically necessary for the individual in question.

A significant problem for the defendants in this case, who include various officials as well as the state’s health services department, was that the legislature, evidently for political reasons, voted in 1996 to forbid the use of state Medicaid funds for gender transition, even though the particular treatments and procedures involved remain covered for a variety of other medical conditions.  For example, somebody suffering a severe hormone deficiency could obtain hormone replacement therapy under Medicaid, and a woman with breast cancer would be covered for a mastectomy, while transgender people would be denied coverage for hormone therapy or mastectomies, even though there was a medical consensus that these treatments were necessary to deal with their gender dysphoria.  The legislature did not undertake any serious study of the expenses of providing such treatment or of the professional medical standards in effect for treating gender dysphoria at that time.  The state tried to defend the statute in this case by coming up with various post hoc arguments that were easily discredited by the court, which observed that the state had failed to present credible expert testimony that there was a sound medical reason to deny the specified procedures to individuals for whom it was medically necessary.

The bulk of Judge Conley’s opinion is devoted to describing the medical evidence in the case, much of it derived from expert testimony provided by the plaintiffs, whose two expert witnesses were experienced medical specialists who had treated hundreds of transgender individuals and who were well-recognized in their field.  The state’s response to this, from the point of view of litigation strategy, was pathetic.  It failed even to offer experts with facially relevant expertise to contest any of the medical evidence.  Indeed, officials of the Wisconsin Medicaid program conceded in their testimony that the WPATH standards describe safe and effective treatments for gender dysphoria in appropriate cases, and there was little dispute that the named plaintiffs qualified for these treatments but were denied coverage for them solely because of the statute.  The court also pointed out that the state had attempted to rely in its arguments on materials that could not have provided a basis for the statute when it was passed, because their publication post-dated it.  In addition, Judge Conley observed that scientific knowledge about gender identity had significantly moved on since the mid-1990s, making the treatments and procedures even safer and more effective today.

The defendants sought to rely on two decision from other circuits: Kosilek v. Spencer, 774 F.3d 63 (1st Cir. en banc, 2014), and Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), but Judge Conley concluded these rulings were not persuasive precedents for this case.

Kosilek culminated long-running litigation and was based on expert testimony presented to the trial court in 2006, predating the current WPATH and Endocrine Society standards.  Also, the en banc 1st Circuit, which was ruling on the question whether GCS was medically necessary in the 8th Amendment context of a state prisoner serving a life sentence for murder (and which, incidentally, was reversing a 3-judge panel decision in the plaintiff’s favor), was heavily influenced by prison security concerns raised by the state that are not relevant in to Medicaid.

As to Gibson, Judge Conley performed a total demolition job on the cock-eyed reasoning of the 5th Circuit panel, whose opinion was written by Trump appointee James Ho.  This was also a prisoner case, the issue being whether it violated the 8th Amendment for the state to maintain a categorical refusal to provide GCS to transgender inmates (unlike in Kosilek, where the court focused on the individual inmate rather than an explicitly categorical treatment ban).  Gibson was a pro se case at the trial level, where the unrepresented inmate was incapable of compiling a state-of-the-art record of expert medical testimony, leaving a factual record bare of the kind of detailed information available to Judge Conley in this case litigated by experience attorneys.  In the absence of such a record, Judge Ho invoked the 1st Circuit’s decision in Kosilek, with its reliance on out-of-date information.  Of course, unlike the present Medicaid case, a case involving a prison setting raises different issues.  On the other hand, Judge Conley’s opinion leaves little doubt that he found the 5th Circuit’s analysis unpersuasive on the key points in common: whether there is a medical consensus that GCS can be medically necessary and that it is a safe and effective treatment.

For the short Affordable Care Act portion of his analysis, Judge Conley refers the reader to his earlier preliminary injunction decision.  As to the Medicaid portion, he details the requirement under Medicaid to cover medically necessary treatments, and furthermore the specific ban on discriminating in coverage decisions depending on the diagnosis of the individual participant.  In the Equal Protection portion of the opinion, he explained that the parties agree that Equal Protection claims by transgender plaintiffs are subject to “some sort of heightened scrutiny,” requiring the state to take on the burden of proving that it has an “exceedingly persuasive” justification for carving out this particular exception from its Medicaid coverage.  The government’s justification, stated now in its defense of the 1996 enactment, was “containing costs and protecting public health in face of uncertainty.”  Conley found neither justification to be sufficient under heightened scrutiny.  For one thing, the state conceded that the legislature made no study prior to passing the statute, either of the costs involved in providing coverage or of the medical facts surrounding gender transition and available treatments.  The only cost projections introduced by the state now were undertaken in response to this litigation, two decades later, and showed that the additional cost to the state’s Medicaid budget on an annual basis amounted to little more than a rounding error.  And, the court observed, there was no credible evidence to support the contention that covering these procedures would endanger public health.

The court also rejected a “spending clause” constitutional argument raised for the first time in support of the state’s opposition to plaintiffs’ summary judgment motion: that it was somehow unfair to the state to impose this “new” burden on it as a matter of federal law when it wasn’t contemplated at the time the state agreed to expand the Medicaid program in response to the Affordable Care Act in 2014.   “Nonsense,” wrote the judge.  Too late, and too bad.

Plaintiffs are represented by attorneys from McNally Peterson, S.C, Milwaukee; Dane & Colfax PLLC, Washington; Abigail Koelzer Coursolle of the National Health Law Program, Los Angeles; and Catherine Anne McKee of the National Health Law Program, Washington.

Transgender Teen’s Mother Asks Supreme Court to Recognize a Parent’s Due Process to Control Her Child’s Life

Posted on: July 27th, 2019 by Art Leonard No Comments

Anmarie Calgaro is one angy mama!  Despite being defeated at every turn in the lower courts, and despite her child having reached age 18 and thus no longer being subject to her parental control as a matter of law, she is asking the U.S. Supreme Court to reverse decisions by the U.S. 8th Circuit Court of Appeals and the U.S. District Court for Minnesota, and to establish that governmental and private entities should not be allowed to shut out a parent from continuing to control her transgender teen, even after the teen has left home and is living on her own.

 

The decisions in the lower courts are Calgaro v. St. Louis County, 2017 WL 2269500 (D. Minn. 2017), affirmed, 919 F. 3d 1054 (8th Cir. 2019), petition for certiorari filed, July 26, 2019, No. 19-127.  The Respondents have a filing deadline of August 26.

 

Calgaro is suing St. Louis County, Minnesota; St. Louis County Public Health and Human Service’s former director, Linnea Mirsch; Fairview Health Services and Park Nicollet Health Services, non-governmental health care providers; St. Louis County School District; Principal Michael Johnson of the Cherry School in that district; and, not least, her child, identified in court papers as E.J.K.

 

The Petition filed with the Supreme Court in Calgaro v. St. Louis County, No. 19-127 (docketed July 26, 2019), presents a factual narrative that differs a bit from that provided by the lower court opinions.  The Petition refers to E.J.K. by male pronouns, despite E.J.K.’s female gender identity, and tells the story from the perspective of a mother confronting misbehaving adults who were wrongfully treating her child, male from her perspective, as if he was emancipated and could make decisions on his own without notice to or approval by his mother.  She was particularly concerned that these adults (governmental and non-governmental) were assisting her child in gender transition without giving her an opportunity to object.

 

The gist of the story is that the teen, identified as male at birth but who came to identify as female, was living with her mother and younger siblings, but decided at age 15 to move out to live with her biological father for reasons not articulated by the courts or the Petition, but one can imagine them.  (From the court’s reference to “biological father,” one hypothesizes that E.J.K.’s biological parents were not married to each other.)  She stayed with her father only briefly, then staying with various family and friends, refusing to move back in with Calgaro, who claims that she has always been willing to provide a home for E.J.K.

 

After leaving her mother’s home, E.J.K. consulted a lawyer at Mid-Minnesota Legal Aid.  The lawyer “provided her with a letter that concluded she was legally emancipated under Minnesota law,” wrote District Judge Paul A. Magnuson.  E.J.K. never sought or obtained a court order declaring her to be emancipated.  But this letter, which by itself has no legal effect, was used effectively by E.J.K. to get government financial assistance payments that ordinarily would not be available to a minor who is not emancipated, to persuade two health care institutions to provide her with treatment in support of her gender transition, and to persuade her high school principal to recognize her gender identity and to treat her as emancipated and to refuse to deal with her mother’s requests for information and input about E.J.K.’s educational decisions.  All of these steps were achieved by E.J.K. without notice to Anmarie Calgaro, who claims to have been rebuffed at every turn in her attempt to find out what was going on with the child to whom she referred as her “son.”

 

The essence of Calgaro’s claim is that in the absence of a court order declaring that E.J.K. was emancipated from her parents, none of these things should have happened.  Relying on  cases finding that parents have Due Process rights under the 14th Amendment concerning the custody, control and raising of their minor children, she claims that each of the defendants violated her constitutional rights by failing to give notice to her of what was happening, failing to afford her some kind of hearing in which she could state her position, and shutting her out from information about her child.

 

She had specifically requested from Cherry School Principal Johnson to have access to E.J.K.’s educational records, but was turned down.  She asked the government agency and the health care institutions for access to E.J.K’s records concerning her health care and her government assistance, but was turned down again.  Who knew a Legal Aid lawyer’s opinion letter could be so powerful!

 

District Judge Magnuson dismissed Calgaro’s lawsuit on May 23, 2017.  As a practical matter, E.J.K. was then less than two months from turning 18, at which point she would become a legal adult and emancipated as a matter of law, so Calgaro’s request for injunctive relief would quickly become moot.

 

The trial court rejected Calgaro’s argument that the county, the school district, the health care institutions, or the individual named plaintiffs had violated Calgaro’s constitutional rights by declaring her child to be emancipated, for, the judge concluded, the defendants “did not emancipate E.J.K. and Calgaro continues to have sole physical and joint legal custody of E.J.K.”  The question remaining is what flows from the fact that until turning 18, E.J.K. continued to be a minor in the custody of Calgaro, even though she was no longer living at home and was effectively managing her own life without parental guidance.

 

Turning first to the health care institutions, the court pointed out that they are not “state actors” but rather private, non-profit entities, so the Due Process Clause does not impose any legal obligations on them, and they could rely on the Legal Aid lawyer’s letter and act accordingly without accruing any liability under the federal constitution.

 

As to the school district, the court found that the district could not be held liable for actions of its employees, only for its own policies or customs, and there was no evidence that the school district had any particular policy or custom regarding how to deal with transgender students or their parents.  “Calgaro fails to provide any facts that the School District executed a policy or custom that deprived Calgaro of her parental rights without due process,” wrote Magnuson.

 

As to Principal Johnson, the court found that he enjoyed “qualified immunity” from any personal liability for the actions he took as principal of Cherry School, so long as he was not violating any clearly-established constitutional right of Calgaro, and the court found no support in published court opinions for a constitutional rights of parents to have access to their child’s school records.

 

The judge also rejected Calgaro’s argument that the County violated her rights by providing financial assistance to E.J.K. without Calgaro’s consent or participation.  The County was providing assistance based on its interpretation of a Minnesota statute that allows payment of welfare benefits to some who does not have “adequate income” and is “a child under the age of 18 who is not living with a parent, stepparent, or legal custodian” but “only if: the child is legally emancipated or living with an adult with the consent of an agency acting as a legal custodian,” with “legally emancipated” meaning “a person under the age of 18 years who: (i) has been married; (ii) is on active duty in the uniformed services of the United States; (iii) has been emancipated by a court of competent jurisdiction; or (iv) is otherwise considered emancipated under Minnesota law, and for whom county social services has not determined that a social services case plan is necessary, for reasons other than the child has failed or refuses to cooperate with the county agency in developing the plan.”

 

Judge Magnuson pointed out that under this statute, the county was not necessarily required to give E.J.K. financial assistance – it was a discretionary decision by the local officials – but that as with her suit against the school district, Calgaro failed to identify a policy or custom that would subject the county to liability.  The court found the county could not be held liable for violating Calgaro’s Due Process rights based on the decision by county officials to provide benefits to E.J.K., and that the head of the county welfare agency, also named a defendant, could not be sued because there was no evidence she had anything to do with the decision to provide the benefits.

 

Furthermore, Calgaro could not sue E.J.K. “Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of her parental rights without due process while acting under color of state law,” wrote Magnuson, who found that as all of Calgaro’s other claims had to be dismissed, any claim against E.J.K. had to fall as well.

 

Calgaro appealed to the 8th Circuit, which issued a brief decision on March 25, 2019, affirming the district court in all particulars.  Furthermore, noting the passage of time, Circuit Judge Steven Colloton wrote, “Calgaro’s remaining claims for declaratory and injunctive relief against the several defendants are moot.  E.J.K. has turned eighteen years old, ceased to be a minor under Minnesota law, and completed her education in the St. Louis County School District.  There is no ongoing case or controversy over Calgaro’s parental rights to make decisions for E.J.K. as a minor or to access her medical or educational records.”

 

Calgaro tried to argue that because she has three minor children other than E.J.K., she has a continuing interest in establishing as a matter of law that the various defendants should not be able to override her parental rights with respect to her remaining minor children, but the court found that “Calgaro has not established a reasonable expectation that any of her three minor children will be deemed emancipated by the defendants.”

 

Calgaro is represented by the Thomas More Society, a religious freedom litigation group, which is trying to use this case to establish the rights of parents, presenting two questions to the Supreme Court: first, whether parents’ Due Process rights to custody and control of their minor children “apply to local governments and medical providers” such that these entities cannot invade “parental rights, responsibilities or duties over their minor children’s welfare, education and medical care decisions without a court order;” and, second, in a rather long and convoluted question, whether the Minnesota statute defining emancipation is unconstitutional to the extent that it might be construed to authorize entities in the position of the defendants to do the things they did in this case.

 

Although the Petition does not stage this case as a religious free exercise case, the advocacy of Thomas More Society suggests that religious objections to transgender identity and transitional care underlie its interest in the case, and that if the Court were to grant the Petition, many religious organizations would be among those arguing that a parent should be able to prevent schools, government agencies, and health-care providers from assistant minors who identify as transgender from effectively freeing themselves from parental control as they seek to live in the gender with which they identify.

 

The National Center for Lesbian Rights provided legal representation to E.J.K. in the lower courts, and continues to represent E.J.K. as one of the named respondents in this Petition.

 

The odds against this Petition being granted are long, but the Court’s recent trend of taking an expansive view of religious free exercise rights suggests that it would not be totally surprising were the Court to take this case for review.

Federal Court Lets Transgender Employee Sue Employer for Transition Benefits Denial Under Title VII

Posted on: January 17th, 2017 by Art Leonard No Comments

Does a transgender employee who seeks coverage under her employer’s benefits plans for breast augmentation surgery have a legal remedy if her claims are denied? U.S. District Judge Sidney A. Fitzwater ruled on January 13 that a transgender woman employed by L-3 Communications Integrated Systems (L-3) may pursue a sex discrimination claim under Title VII of the Civil Rights Act of 1964, having alleged that she was denied such benefits because of her gender, but not under the anti-discrimination provision of the Affordable Care Act (ACA). Baker v. Aetna Life Insurance Company, 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.).

Judge Fitzwater rejected discrimination claims against the insurance company that provides the coverage and administers the plans on behalf of the employer, finding that the ACA and President Obama’s Executive Order governing gender identity discrimination by federal contractors do not apply to this situation, and that the insurance company cannot be sued under Title VII because it is not the plaintiff’s employer. Judge Fitzwater declined to grant motions for summary judgment by either the employee or by the insurer of her claim that denial of health and short-term disability benefits violates her rights under the terms of the employee benefits plan, setting that claim down for further proceedings.

According to her Complaint filed in the U.S. District Court for the Northern District of Texas in Dallas, Charlize Marie Baker is an employee of L-3 and a participant in the company’s Health Plan and its Short-Term-Disability (STD) Plan, both of which are administered by Aetna Life Insurance Company. She began the process of transitioning in 2011, obtained a legal name change, and had her gender designation changed from male to female on all government-issued documents.  She scheduled breast implant surgery in 2015 after her doctor determined that it was medically necessary to treat her gender dysphoria.

Baker filed claims for coverage of the surgery under the Health Plan and coverage of her recovery period under the STD Plan.  She alleges that the Health Plan denied her claim to cover the surgery, because “the plan does not cover breast implants for individuals with a male birth gender designation who are transitioning to the female gender, although the plan covers individuals with a female birth designation who are transitioning to the male gender and seeking a mastectomy.”  Presumably the mastectomy would be routinely covered because the Health Plan is accustomed to covering mastectomies for female employees when their doctors state that the procedure is medically necessary.   Baker was denied STD benefits because the Plan administrator decided that surgery to treat Gender Dysphoria does not qualify as “treatment of an illness.”

In his January 13 ruling, Judge Fitzwater focused on motions by L-3 and Aetna to dismiss discrimination claims brought under Section 1557 of the ACA, the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act of 1964. Section 1557 of the ACA incorporates by reference Title IX of the Education Amendments Act of 1972, which prohibits discrimination “because of sex.”  ERISA has its own non-discrimination provision, but does not specifically ban discrimination “because of sex.”  The ERISA provision broadly prohibits discriminating against an employee to prevent them from getting benefits to which they are entitled under an employee benefit plan.  ERISA provides a vehicle for employees to sue plan administrators for the wrongful denial of benefits to which they are entitled under employee benefit plans.

None of the statutes under which Baker filed her claims explicitly prohibits discrimination because of gender identity. In resisting the motions to dismiss, she relied heavily on a regulation published by the Department of Health and Human Services last spring, providing that Section 1557 of the ACA bans discrimination because of gender identity by insurers and health care providers, tracking interpretations of Title IX by the Department of Education and the Justice Department, which in turn relied on interpretations of Title VII by some federal courts and the Equal Employment Opportunity Commission (EEOC).

Baker also relied on President Obama’s Executive Order 13672, which bans gender identity discrimination by federal contractors. Noting that L-3 is a federal contractor, Baker’s attorneys, Michael J. Hindman and Kasey Cathryn Krummel of Hindman/Bynum PC, urged the court to make “a good faith extension of existing law that the discrimination by Defendants based on her Gender Identity is also discrimination in violation of ERISA in this context and that ERISA must be read to include the prohibition of discrimination based on gender identity.”

“Baker is unable to point to any controlling precedent that recognizes a cause of action under Section 1557 [of the ACA] for discrimination based on gender identity,” wrote the judge. For one thing, he pointed out, the HHS regulation on point was to become effective on January 1, 2017, long after Baker was denied benefits, and thus was not applicable at the time of Aetna’s decision to deny the claims, and furthermore, one of Judge Fitzwater’s colleagues on the Northern District of Texas bench, Judge Reed O’Connor, has issued two rulings rejecting the argument that Title IX, which is the source of the ACA non-discrimination policy regarding sex, should be “construed broadly to protect any person, including transgendered persons, from discrimination.”

On August 21, 2016, Judge O’Connor issued a preliminary injunction against the enforcement of Title IX by the federal government in gender identity cases, and he issued a similar preliminary injunction on December 31, 2016, against the enforcement of the HHS regulation in gender identity cases under the ACA. The government appealed the August 21 ruling to the 5th Circuit Court of Appeals in Houston, and announced it would similarly appeal the December 31 ruling.  Whether those appeals will be pursued or dropped after the change of administration on January 20 is a decision for the new attorney general and secretaries of education and health.  In both of those cases, O’Connor concluded that the plaintiffs were likely to prevail on their claim that Title IX (and by extension the ACA) does not ban gender identity discrimination.

Many federal courts are grappling with the question whether federal laws and regulations banning discrimination “because of sex” should apply to gender identity or sexual orientation discrimination, but there is no consensus yet among the appellate courts. The Supreme Court has a case pending on the gender identity issue under Title IX, but it has yet to be scheduled for argument.  The closest the appeals courts have come are decisions finding that “sex stereotyping” violates Title VII and perhaps by extension other sex discrimination laws, based on a 1989 ruling by the Supreme Court in Price Waterhouse v. Hopkins.  Some courts have used the “sex stereotyping” theory to protect transgender employees in Title VII cases.  However, Judge Fitzwater was correct in observing that as of now there is no “controlling precedent” supporting Baker’s claim that gender identity discrimination, as such, violates Section 1557 of the ACA.  For this judge, a “controlling precedent” would be one coming from the 5th Circuit, which has appellate jurisdiction over federal trial courts in Texas, or the Supreme Court, and expressly addressing the issue.

Baker sought to argue that “the ‘effect’ of E.O. 13672 seems to be little more than to clarify the issue left somewhat ambiguous in Section 1557 that discrimination against transgender persons under this law is prohibited.” She argued that when the ACA was enacted in 2010, some courts had already relied on Price Waterhouse v. Hopkins to find gender identity discrimination covered by Title VII.

Fitzwater found “two fallacies” in this argument. “First,” he wrote, “the Fifth Circuit has not extended Hopkins’ Title VII reasoning to apply to any statute referenced in Section 1557,” and cited Judge O’Connor’s August 21 ruling in support of this point.  “Second, Baker is relying on an Executive Order to clarify what she characterizes as a ‘somewhat ambiguous’ legislative act.”  This was not enough to satisfy Fitzwater, who granted the motions to dismiss the ACA discrimination claim.

Aetna also moved to dismiss Baker’s ERISA claim, contending that ERISA does not ban gender identity discrimination in the administration of employee benefit plans. Fitzwater agreed with Aetna, finding that “as Baker acknowledges, this claim is not currently recognized.  It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide.”  And because the court had already rejected her argument under Section 1557, it would not rely on that ACA provision as a basis for finding a right under ERISA.

Turning finally to the motions to dismiss the Title VII claim, Judge Fitzwater rejected Baker’s argument that Aetna should be liable to suit for sex discrimination under Title VII as an “agent” of L-3 in administering the benefits plans. Fitzwater pointed to 5th Circuit precedents holding that Title VII does not apply in the absence of an employer-employee relationship.  Baker argued that in the EEOC Compliance Manual there is a suggestion that an insurance company administering an employer’s benefit plans is acting as the employer’s agent, “but the EEOC Compliance Manual does not have the force of law,” wrote Fitzwater.  “And this circuit recognizes an agency theory of employer liability only if the alleged agent had authority ‘with respect to employment practices,’” which Baker did not allege.

However, at long last Fitzwater reached the only claim that he refused to dismiss in this opinion: Baker’s allegation that the denial of coverage for her surgery and recovery period under the benefits plans provided by her employer constituted sex discrimination by the employer in violation of Title VII. L-3 argued that Baker had failed to allege that she suffered an adverse employment action based on her gender, but, wrote Fitzwater, “The Court disagrees.”

“Baker plausibly alleges that she was denied employment benefits based on her sex,” he wrote. “She asserts that L-3 ‘engaged in intentional gender discrimination in the terms and conditions of employment by denying her a medically necessary procedure based solely on her gender,’” that the company’s “conduct constitutes a deliberate and intentional violation of Title VII,” and that this conduct “has cause [her] to suffer the loss of pay, benefits, and prestige.”  This was enough, concluded Fitzwater, to allow her Title VII claim against her employer to continue.  Interestingly, his opinion does not explore explicitly whether Title VII applies to gender identity discrimination claims as such, and makes no mention of the EEOC’s 2012 decision to that effect, choosing to treat this as purely a sex discrimination, presumably on the basis that Baker would have been covered for the procedure had she been identified female at birth, so clearly in that sense the denial was because of her sex.

Thus, at this point Baker continues to have a claim under ERISA against Aetna, based on her allegation that Aetna’s refusal to cover her procedure and recovery period violated the terms of the benefits plans, and a sex discrimination claim under Title VII against her employer, based on her allegation that the employer’s benefit plan discriminated against her because of her sex.