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Posts Tagged ‘heightened scrutiny’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Goodwin was appointed by President Bill Clinton in 1995.

Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

Posted on: December 17th, 2020 by Art Leonard No Comments

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution.  Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted.  Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee.  Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy.  That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity.  Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity.  All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio.   State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition.  Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed.  Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14th Amendment, as well as their Free Speech rights under the 1st Amendment.  Having ruled in favor of the plaintiffs on their 14th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright.  The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record.  Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate.  The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification.  On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy.  Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing.  Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so.  What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances.  A person who gets a legal name change can get a new birth certificate showing their new legal name.  After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents.  The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case.  Furthermore, the state could attempt to appeal this ruling to the 6th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn.  Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

 

Federal Court in Trans Military Case Refuses to Delay Discovery Further

Posted on: February 10th, 2020 by Art Leonard No Comments

On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.

Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.

Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.

The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.

Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.

Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.

Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.

 

9th Circuit Instructs District Court on Next Stage in Trans Military Litigation

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

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued a ruling on June 14 on several appeals filed by the Justice Department in Karnoski v. Trump, one of the lawsuits challenging President Trump’s transgender military policy.  The result was not a complete win for the government or the plaintiffs, but the case will go forward before U.S. District Judge Marsha J. Pechman in Seattle using different legal tests than those she had employed in issuing the rulings that the government had appealed.  Because one of the other challenges to the policy is pending in a district court in Riverside, California, which is also within the 9th Circuit, the court’s ruling effectively applies to both cases.  Karnoski v. Trump, 2019 U.S. App. LEXIS 17878, 2019 WL 2479442 (9th Cir., June 14, 2019).

Since neither party is likely to be fully satisfied with the ruling, which does not fully embrace either party’s position on the appeals, it is possible that one or both will seek reconsideration by a larger panel of the circuit court.  In the 9th Circuit, such panels consist of the Chief Judge of the Circuit and ten active circuit judges drawn at random, together with any senior judges who sat on the panel.  The panel that issued the June 14 ruling had two senior judges – Raymond C. Fisher and Richard R. Clifton – and one active judge, Conseulo M. Callahan.  Fisher was appointed by Bill Clinton, while Clifton and Callahan were appointed by George W. Bush.  District Judge Pechman was appointed by Bill Clinton.

For purposes of simplicity, this description of where the lawsuit stands will refer to the policy announced by then-Defense Secretary Ashton Carter in June 2016 as the 2016 policy, the policy announced in tweets and a White House memorandum by President Donald Trump in July and August 2017 as the 2017 policy, and the policy recommended to Trump by then-Defense Secretary James Mattis in February 2018 as the 2018 policy.

The 2016 policy ended the long-standing regulatory ban on military service by transgender people, but delayed allowing transgender people to enlist until July 2017.  In June 2017, Secretary Mattis announced that the ban on enlistment would be extended to the end of 2017.  The July tweet and August 2017 memorandum announced a return to the ban on service and enlistment that predated the 2016 policy, but delayed re-implementation of the ban until March 2018, pending submission of an implementation plan to the president by Mattis, while providing that the ban on enlistment would remain in effect.

The plan Mattis recommended in February 2018, and that Trump authorized him to adopt, abandoned the total ban concept and is complicated to explain. The policy attempted to shift its focus, at least in terms of concept, from transgender status to the condition of gender dysphoria as described in the American Psychiatric Association’s Diagnostic and Statistical Manual.  The 2018 plan allows some transgender people to serve under certain conditions, depending upon whether and when they were diagnosed with gender dysphoria, whether and when they intended to transition or had transitioned, and whether they were willing to serve in their gender as identified at birth.  People who had been diagnosed with gender dysphoria were barred from enlisting, and currently serving transgender personnel who had not been diagnosed and initiated the process of transitioning by the time the 2018 policy went into effect could continue serving only if they foreswore transitioning while in the service.  However, those who were serving and had begun transitioning before the 2018 policy went into effect could continue serving in the gender to which they had transitioned.  People who identify as transgender but have not been diagnosed with gender dysphoria and are content to serve in the gender identified at birth can enlist and serve, but must leave the service if they are subsequently diagnosed with gender dysphoria.  The bottom line, which was a motivation for Trump’s initial tweet, is that once the 2018 policy was in place, the military would not be funding sex-reassignment surgery for anyone and people could not transition in the military.

Beginning in August 2017 and continuing through that summer, challengers file four lawsuits challenging the 2017 policy on constitutional grounds in Baltimore, Washington (D.C.), Seattle, and Riverside (California).  All of the major LGBT litigation groups were representing the plaintiff in one or more of the cases.  Within months, each of the federal district judges had granted motions for preliminary injunctions to prevent the 2017 policy from going into effect.  In order to issue the injunctions, all four judges had to find that some or all of the plaintiffs’ legal arguments had a fair chance of succeeding on the merits, and that the injunctions were necessary to prevent irreparable harm to the plaintiffs by preserving the status quo without harming the public interest.  The district judges refused to “stay” their injunctions, and on the east coast they were backed up by the 4th and D.C. Circuits, leading the government to abandon an attempt to appeal the denial of stays for the west coast cases in the 9th Circuit.  The district judges also rejected motions by the government to dismiss the cases.  Thus, on January 1, 2018, the Defense Department was required to accept enlistment applications from transgender people, and the 2016 policy remained in effect for transgender people who were actively serving in the military.

Meanwhile, Secretary Mattis appointed a Task Force as directed by the August 2017 White House memo to prepare a report in support of an implementation policy recommendation, which he submitted to the White House in February 2018, urging the president to revoke the 2017 policy and to allow Mattis to implement his recommended policy.  The Task Force was described in various ways at various times by the government, but the names and titles of the members were not listed in the written report released to the public, and the government has resisted discovery requests for their identity and information about how the Task Force report was prepared.

Once Secretary Mattis had the go-ahead from Trump to implement his recommendation, the Justice Department moved in all four courts to get the preliminary injunctions lifted, arguing that the 2018 policy was sufficiently different from the 2017 policy to render the existing injunctions irrelevant.  All four of the district judges rejected that argument and refused to dissolve or modify their injunctions.  The government appealed and ultimately was able to persuade the Supreme Court earlier this year to stay the injunctions and allow the policy to go into effect early in April. Although the 2018 policyhas been in effect for over two months, there have not been reports about discharges of serving transgender personnel.

Significantly, the 9th Circuit panel implied without ruling that the preliminary injunction against the 2017 policy seemed justified.

Meanwhile, the parties in the four cases were litigating about the plaintiffs’ attempts to conduct discovery on order to surface the information necessary to prove their constitutional claims against the policy.  The government fought the discovery requests doggedly, arguing that the internal workings of its military policy-making should not be subject to disclosure in civil litigation, referring to but not formally invoking concepts of decisional privilege and executive privilege, which courts have recognized to varying extent in prior cases challenging government policies.

In the Karnoski case in Seattle, Judge Pechman was highly skeptical about the government’s arguments, having questioned whether the policies were motivated by politics rather than professional military judgment, and she issued an order for the government to comply with a large portion of the requests for documents and information after prolonged negotiations by the lawyers largely came to naught.  The government appealed her discovery orders to the 9th Circuit, together with refusal to rethink the preliminary injunction in light of the substitution of the 2018 policy for the 2017 policy.

The June 14 opinion describes how the case should go forward, taking account of the Supreme Court’s action in having stayed the preliminary injunctions but not dissolved them.  The 9th Circuit panel agreed with the D.C. Circuit, which had concluded earlier in the year that the D.C. district court was wrong to conclude that the 2018 policy was just a version of the 2017 policy with some exceptions.  The appellate courts held that the 2018 policy recommended by Mattis was no longer the total ban announced in 2017, so the district court should evaluate the 2018 policy.

The court rejected the government’s argument that shifting the exclusionary policy from “transgender status” to “gender dysphoria” eliminated the equal protection issue, finding from the wording of the Task Force report and the policy as summarized in writing by Mattis that the policy continued to target transgender people in various ways, regardless whether they have been diagnosed with gender dysphoria, through the conditions it places on their service.  This was a “win” for the plaintiffs on an important contested point.

Judge Pechman had concluded that gender identity is a “suspect classification,” so for purposes of evaluating the constitutionality of the policy under an Equal Protection challenge, it should be presumed unconstitutional with a heavy burden placed on the government to prove a compelling need for the policy.  The 9th Circuit panel decided there was not sufficient precedent to support that approach, but did agree with the position taken by the district judges in the other three cases that the policy should be subjected to “heightened scrutiny,” similar to the approach courts take in sex discrimination cases, but tempered by consideration of the degree to which the policy merits deference as a product of professional military judgment.

Judge Pechman had concluded that the 2017 policy did not merit judicial deference, because there was no evidence before the court that it was the product of professional military judgment.  Rather, as all the district judges had concluded, based on the way the policy was announced in a surprise tweet and the failure of the government to provide any information about how it was formulated, the court’s analysis should not be tempered by judicial deference.

Now, however, said the 9th Circuit panel, the government had described, in a general way, how Mattis’s Task Force was put together, and t the 2018 policy was allegedly the result of many meetings, study, much interviewing of military personnel, and a 44—page report.  If one accepts the government’s description of the process – still not identifying by name the Task Force members or getting into any real detail about the basis for their conclusions – the court said, there is an argument that the 2018 policy should be accorded judicial deference, but whether to do so, and how that would interrelate with the heightened scrutiny standard, were questions to be addressed by the district court.  Thus, the task for Judge Pechman now is to determine whether the 2018 policy is sufficiently a product of military judgment to justify applying a deferential standard of review.  Some degree of cooperating by the government in the discovery process is crucially necessary for such an analysis to take place.

However, as to discovery, the 9th Circuit panel expressed concern that Judge Pechman had not accorded sufficient weight to the concepts of decisional and executive privilege in formulating her discovery order, and directed that she refer to guidelines set out in some recent court opinions.  In particular, the court disagreed with her order that the government provide detailed privilege logs with descriptions of all the documents for which there were privilege concerns, and suggested that an approach focused on broadly described categories of documents and information could suffice for an initial determination of the degree to which privilege might be claimed to block disclosure.

The bottom line is that the Karnoski case goes back to Judge Pechman for a fresh analysis of whether plaintiffs should be entitled to a preliminary injunction against the 2018 policy, using heightened scrutiny and taking account of privilege claims in the discovery process, along the lines outlined by the court.  This opinion also sends a message to the district court in Riverside, where similar government motions are pending.  Meanwhile, the discovery battles continue in the cases pending in Baltimore and Washington.

In light of the Trump Administration’s general policy of fighting against demands for disclosure of internal executive branch decision-making, whether by Congressional committees or litigants, it is difficult to predict when there will be sufficient discovery to provide a basis for further rulings on preliminary injunctions or the ultimate merits of the four court challenges.  The lawsuits succeed in blocking implementation of the total ban and the 2017 policy, and in delaying implementation of the 2018 policy for more than a year.

The litigation will not be finally resolved before Inauguration Day in January 2021 unless the Trump Administration is willing to negotiate some sort of compromise settlement satisfactory to the plaintiffs.  If any of the current Democratic presidential candidates is elected and takes office, a quickly-issued executive order restoring the 2016 policy could put an end to the entire transgender military service drama and restore sanity to an issue that has been clouded by politics and substantial misinformation, such as Trump’s recent grossly-exaggerated statements about the cost of health care for transgender personnel.

Trump Administration Suffers More Setbacks in Defending Transgender Military Ban

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

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government.  [Addendum:  After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban.  Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests.  The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals.  Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist.  Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military.  Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth.  Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged.  The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court.  The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege.  Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote.  “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.  In making this determination, relevant factors include: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever.  Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.”  Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.”  Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be largely disqualified from military service, and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service.  No other service members are so afflicted.  These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future.  There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment.  These harms are an additional basis for Plaintiffs’ standing.”  She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.”  Thus, she concluded, there was no reason to retain Trump as a defendant.  If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed.  To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.”  And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President.  The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case.  After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.”  In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit.  The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent:  The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski.  Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

Plaintiffs in the Seattle case, Karnoski v. Trump (in which the president remains a defendant), are represented by Lambda Legal and pro bono attorneys from Kirkland & Ellis. Plaintiffs in the D.C. case, Jane Doe 2 v. Trump, are represented by the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and pro bono attorneys from Wilmer Cutler Pickering Hale & Dorr LLP and Foley Hoag LLP.

Addendum:

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.”  Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion.  If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’  There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request.  There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President.  By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself.  The Presidential tweets put the President front and enter as the potential discriminating official.”  So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent.  On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban.  Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided.  If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.”  However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’”  Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

Federal Court Awards Preliminary Restroom Access Relief to Transgender Students on Their Constitutional Claim

Posted on: February 28th, 2017 by Art Leonard No Comments

Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.

Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.”  A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.

On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.

Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects.  Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate.  Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly.  It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then.  Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.

The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms.  The school also has established numerous single-user restrooms that are accessible to students.  The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.

Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy.  Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.”  He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.

Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.”  Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District.  As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society.  More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School.  Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”

That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak.  The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or  urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions.  Conversely, others in the restrooms are shielded from such views.”  And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.

The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”

Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue.  The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary.  “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”

He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it.  He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.

In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.

Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation.  With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case.  Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits.  What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling.  Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision.  It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it.  Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs.  If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay.  (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)

Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.

In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.

Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..

9th Circuit Holds Sexual Orientation Requires Heightened Scrutiny in Gay Juror Case

Posted on: January 21st, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled today in Smithkline Beecham Corp. v. Abbott Laboratories that a new trial has to be held because Abbott, the defendant in a civil suit involving claims about the pricing of HIV medications, used one of its “peremptory challenges” to exclude a gay man from the jury. The court found that excluding people from a jury because they are gay violates the Equal Protection Clause of the 14th Amendment, under the 1986 Supreme Court ruling in Batson v. Kentucky. As a necessary part of its ruling, the 9th Circuit panel concluded that sexual orientation discrimination claims are subject to “heightened scrutiny,” a doctrine that makes them more likely to succeed and that may have a significant impact on pending marriage equality cases in Nevada, Arizona and Oregon.

In Batson, the Supreme Court held that excluding a potential juror because of his race violated the 14th Amendment. The court explained that such discrimination in jury selection would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice,” and that proof of such discrimination was grounds for reversing a trial verdict and ordering a new trial. In a subsequent case, the Supreme Court extend Batson to discrimination based on sex, but indicated that “parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Race is subject to “strict scrutiny,” and sex is subject to “heightened scrutiny.” In order to decide whether the jury strike in this case came within the Batson precedent, the 9th Circuit had to decide whether sexual orientation discrimination is subject to “heightened scrutiny.”

In past decisions, the 9th Circuit has rejected “heightened scrutiny” for sexual orientation discrimination claims, and normally a 9th Circuit panel would follow those precedents. But, in an opinion by Judge Stephen Reinhardt, the panel noted that the Supreme Court’s decision last June in United States v. Windsor has rendered the past 9th Circuit decisions obsolete. Even though the opinion for the Supreme Court by Justice Anthony M. Kennedy did not state explicitly what standard of review the Court was using in striking down Section 3 of DOMA, Judge Reinhardt asserted that the Windsor court was applying some form of heightened scrutiny in that case.

Reinhardt reached this result by a probing reading of Kennedy’s opinion, showing that what the Supreme Court actually did bore the hallmarks of a heightened scrutiny case. Under rational basis review, a statute would be presumed to be constitutional and would be upheld, despite its discriminatory effects, if the Court could hypothesize any rational justification for it. But the Supreme Court did not presume Section 3 to be constitutional, and paid no attention to the post-hoc justifications argued by former Solicitor General Paul Clement on behalf of a House of Representatives Committee. Instead, the Supreme Court focused on the legislative history of DOMA, which showed that it was enacted specifically to discriminate against gay people on grounds of moral disapproval. Justice Kennedy focused on Congress’s “avowed purpose” for enacting DOMA. “The principal purpose,” he wrote, “is to impose inequality, not for other reasons like governmental efficiency.” “The result of this more fundamental inquiry,” wrote Judge Reinhardt, “was the Supreme Court’s conclusion that DOMA’s ‘demonstrated purpose raised a most serious question under the Constitution’s Fifth Amendment.’ Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congress’s actual purposes. Windsor’s ‘careful consideration’ of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.”

Reinhardt also noted that the Windsor court put the burden on Congress to “justify disparate treatment of the group,” and under rational basis review, the burden is placed on the challenger to prove that there is no rational justification, not on the government to justify its discrimination. And Reinhardt pointed out that in rational basis cases, the court is “ordinarily unconcerned with the inequality that results from the challenged state action,” but that in Windsor, the Court expressed great concern about the inequality imposed on married same-sex couples by DOMA.

“Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians,” wrote Reinhardt. “Section 3 of DOMA violates the equal protection component of the due process clause, Windsor tells us, because ‘it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance.” From this, Reinhardt concluded, “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.” This, of course, is the hallmark of heightened scrutiny in equal protection cases. “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.”

In this case, Abbott had an interest in avoiding seating jurors that might be biased against it because it was being charged with improperly inflating the price of HIV medications whose patents it controlled. During the voir dire questioning of potential jurors, it became clear that one man was gay due to his references to his partner. The attorney for Abbott questioned him briefly, but elicited no answers that indicated any particular bias against his client. However, he asked to strike the juror. When the attorney for the other party objected, raising the Batson principle, the trial judge questioned whether Batson applied to the case or the circumstances, but asked the attorney whether he had any particular reason for seeking to exclude the juror. The attorney did not specify a reason, and was allowed to use a peremptory (unexplained) challenge to eliminate him from the jury. The 9th Circuit held that this was error. Since sexual orientation discrimination merits heightened scrutiny, the Batson rule applies and because it was clear that the juror was a gay man and, under the circumstances, Abbott’s counsel might entertain the view that gay men would be biased against his client, some valid justification was necessary to sustain the challenge to his jury service.

The California Supreme Court extended the Batson rule to gay jury challenges long ago for purposes of trials in the state courts, but this ruling by the 9th Circuit is the first to extend Batson to such challenges in federal courts. But the ruling is potentially much more consequential–first, because it applies broadly to all sexual orientation discrimination claims, not just juror challenges, and second, because of another case pending before the 9th Circuit and shortly to be argued, Sevcik v. Sandoval, a challenge to Nevada’s ban on same-sex marriage. In Sevcik, the district court, ruling before last year’s Windsor decision, rejected a challenge to the Nevada marriage ban, holding that the court was bound under the 1972 Supreme Court affirmance in Baker v. Nelson to hold that Sevcik had not presented a “substantial federal constitutional question” and that the state’s ban survived rational basis review. Windsor was decided after Sevcik’s appeal to the 9th Circuit was filed. Now the 9th Circuit has ruled that Windsor requires heightened scrutiny of sexual orientation claims. That surely forecasts a reversal in Sevcik, although it is not clear whether the 9th Circuit would remand the case to the trial court for reconsideration under the heightened scrutiny standard or whether the court of appeals would rule as a matter of law under that standard that the Nevada ban is unconstitutional. Either way, the 9th Circuit’s ruling should have immediate consequences for recently filed marriage equality lawsuits in Arizona, Idaho and Oregon, states which are also in the 9th Circuit, as those district courts will be bound to apply heightened scrutiny in deciding those cases.

Lambda Legal had an amicus brief in the case, co-authored by Shelbi D. Day, Tara L. Borelli, and Jon W. Davidson, working from the organization’s Western Regional Office in Los Angeles.