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Federal Judge Slams Tennessee Anti-Drag-Show Law

Posted on: June 5th, 2023 by Art Leonard No Comments

U.S. District Judge Thomas L. Parker, who was appointed to the Western District of Tennessee bench by President Donald J. Trump, issued a ruling on June 2 holding that Tennessee’s recently adopted “Adult Entertainment Act” (AEA), which was intended to restrict drag shows, violates the First Amendment.  Judge Parker previously issued a temporary restraining order (TRO) in March to stop the law from going into effect before he could rule on the merits of the plaintiff’s constitutional claim.  His June 2 ruling came after a two-day hearing on May 22-23.

The opinion is cited as Friends of Georges, Inc. v. Mulroy, 2023 WL 3790583, 2023 U.S. Dist. LEXIS 96766 (W.D. Tenn., June 2, 2023).

Governor Bill Lee signed the AEA into law on March 2. It was supposed to take effect on April 1.  Friends of Georges, Inc., a non-profit group that presents drag shows to raise money for charitable causes, was scheduled to present a show in mid-April, and was concerned that it risked criminal prosecution, so it moved quickly to seek a TRO.  The original TRO was supposed to last just for a few days, but Judge Parker extended it and converted what would normally be a hearing on a preliminary injunction into a hearing on the merits.  As part of June 2’s ruling, he denied Shelby County District Attorney General Steven J. Mulroy’s motion to dismiss the case as “moot.”

The lawsuit was originally aimed at Governor Lee and the state attorney general as well as Mulroy, but the court determined that Mulroy was the appropriate defendant because the law was to be enforced by local prosecutors.  Much of the court’s opinion is devoted to refuting Mulroy’s arguments that the plaintiffs lacked standing to bring a pre-enforcement challenge.

The statute, surprisingly, never explicitly mentions drag shows.  Instead, it adds language to an existing Tennessee law regulating venues for adult entertainment by creating a new category – “adult cabaret entertainment” – which it defines as “adult-oriented performances that are harmful to minors, as that term is defined in Section 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”

The statute makes it a crime for “a person to perform adult cabaret entertainment on public property; or in a location where the adult cabaret entertainment could be viewed by a person who is not an adult.”  Unlike prior statutes that focused regulatory enforcement on the business that is providing the show, this statute focuses on the performers, threatening them personally with criminal liability that may result in fines or imprisonment.  A first offence is a misdemeanor.  A repeat offense is a felony likely to result in prison time.

The definition of “harmful to minors” means “that quality of any description or representation, whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and taken as a whole lacks serious literary, artistic, political or scientific values for minors.”  This wording was taken from the U.S. Supreme Court’s 1974 Miller v. California opinion, which set out a uniform definition of obscenity for purposes of the First Amendment.  Even though the First Amendment says that “Congress shall make no law abridging the freedom of speech,” the Supreme Court has long held that “obscene speech” is not protected from state prohibition by the First Amendment.  (A few stubborn textualists of an earlier generation on the Court rejected that exception, saying that “no law means no law.”)

Under Supreme Court precedents, if a state law can be classified as a content-based regulation of speech, it is subjected to “strict scrutiny” by the court, which means that the law is presumed to be unconstitutional unless the state proves that the law is necessary to achieve a compelling state interest, and that it is “narrowly tailored” to avoid unnecessarily restricting protected speech.

Judge Parker’s key ruling was that the AEA is a content-based regulation of speech subject to strict scrutiny.  “The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under section 39-17-901’ does target protected speech, despite Defendant claims to the contrary,” he wrote.  “Whether some of us like it or not, the Supreme Court has interpreted the First Amendment as protecting speech that is indecent but not obscene.  Because the AEA’s text targets such speech, the Court finds it is a content-based regulation.  The AEA draws distinctions based on the message a speaker conveys: adult-oriented performances that are harmful to minors are sanctioned with a criminal penalty while others are not.  This fact alone does not make the AEA unconstitutional – but it does make it a content-based regulation that may be possibly subject to strict scrutiny review.”

Strict scrutiny definitely kicks in when a content-based regulation is not viewpoint neutral.  The court found that this law is not viewpoint neutral because it targets the individual performers for enforcement.  He observed that “the AEA’s text criminalizes performances that are ‘harmful to minors’ by ‘male or female impersonators,’ and the Court must grapple with that text.  The Court finds that this phrase discriminates against the viewpoint of gender identity – particularly, those who wish to impersonate a gender that is different from the one with which they are born.”

Furthermore, Judge Parker found that the AEA was enacted for an “impermissible purpose.”  Focusing on male or female impersonators “is evidence that the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.”  Also, the law lacks a “textual scienter requirement” – that is, a requirement that the performer has “knowingly” violated the statute by presenting a performance that is harmful to minors, and it does not provide for any affirmative defenses, such as parental consent for their children to see the performance.

Here, the problem of vagueness entered in as well, because the language of the statute did not restrict its enforcement to adult entertainment venues, but extended to any place where minors could be present, which could be, said the court, “virtually anywhere,” echoing the words of an opponent of the bill during the legislative debate.

“For these reasons,” wrote Parker, “the AEA can criminalize – or at a minimum chill – the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County.  Such speech is protected by the First Amendment.”  The court quoted excerpts from the legislative history bolstering these conclusions.

While acknowledging that the state always has a compelling interest in protecting children, the court found that this statute was not “narrowly tailored” to achieve that interest, but rather, due to the vague contours of the statutory prohibition, lent itself to overly broad and subjective enforcement.  The law induces a “chilling” effect because it is hard for performers to find a bright line demarcating when their performance would be violating the statute.  This was certainly the case with Friend of Georges, which was unsure how to proceed with their drag show scheduled to be presented just two weeks after the statute was to go into effect.

Judge Parker viewed video recordings of past drag performances presented by Friends of Georges and saw the ambiguities that would make it unpredictable how law enforcement officers might apply the statutory language to particular performances.  The court found that there was a danger of “substantial overbreadth” in applying the vague statutory language, which would deter the plaintiffs from engaging in constitutional protected speech out of a reasonable fear of prosecution.

“The Tennessee General Assembly can certainly use its mandate to pass laws that their communities demand,” wrote Parker, alluding to “scores of concerned Tennesseans” who had “asked the Court to uphold the AEA because their State supposedly enacted it to protect their children….  But that mandate as to speech is limited by the First Amendment to the United States Constitution, which commands that laws infringing on the Freedom of Speech must be narrow and well-defined.  The AEA is neither.”

In addition to declaring the law unconstitutional, the court issued an injunction against Attorney General Mulroy’s office enforcing it.

Judge Parker’s decision can be appeal by defendant Mulroy to the U.S. Court of Appeals for the 6th Circuit.

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 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.