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Alliance Defending Freedom Asks Supreme Court to Intervene in West Virginia Transgender Sports Case

Posted on: March 13th, 2023 by Art Leonard No Comments

Alliance Defending Freedom, the conservative religious litigation group, representing as intervening defendant a cisgender girl who claims it is unfair to require her to compete in track and field against a transgender girl, applied to the Supreme Court to reverse an order by a three-judge panel of the 4th Circuit Court of Appeals allowing B.P.J., a transgender girl, to continue competing while the court of appeals considers her appeal of an adverse ruling by the federal district court.  State of West Virginia v. B.P.J., No. 22A800 (23-1078).

The actual defendants in the case are the State of West Virginia, its State Board of Education, the West Virginia Secondary School Activities Commission, and the state Education Superintendent.  ADF’s Application, addressed to Chief Justice John G. Roberts, Jr., who receives such applications arising from courts within the 4th Circuit, was docketed on March 13.  Chief Justice Roberts ordered B.P.J. to respond by noon on March 20.

The Application was accompanied by two amicus briefs, from “67 Female Athletes, Coaches, Sports Officials, and Parents of Female Athletes” and from “Alabama, Arkansas, and 19 Other States.” ADF apparently acted quickly to round up support.

The 4th Circuit’s February 22 Order, issued by a 2-1 vote of the panel, provided no explanation for its decision to reject District Judge Joseph Goodwin’s refusal to stay the Order that he had issued early in January, when he had concluded that B.P.J. was not likely to prevail on her claim that West Virginia’s Sports Act violated her federal constitutional and statutory rights.  Goodwin issued an opinion on February 7 reiterating his refusal to stay his ruling, which prompted B.P.J. to seek quick relief from the 4th Circuit before the spring track and field season commenced.

The ADF application is likely to draw the Supreme Court into one of the most hotly disputed issues in transgender law: whether federal law requires that transgender girls be treated as girls for purposes of athletic competition.  According to ADF’s Application, 17 states have adopted these bans, and similar proposals are pending in more state legislatures.

The 2nd Circuit Court of Appeals recently announced that it was taking up the same question by the full bench of that court (13 active judges) in relation to Connecticut’s policy of letting transgender girls compete, thus vacating a 3-judge panel decision that had upheld the dismissal of a challenge to that state’s policy that was brought by three cisgender girls who had been beaten in competition by transgender girls.  The plaintiffs in that case argued that the state’s policy violated their Equal Protection and Title IX rights.

When Judge Goodwin first encountered B.P.J.’s lawsuit, filed by Lambda Legal and the ACLU, in the context of a pretrial motion for a preliminary injunction, he granted the preliminary injunction early in 2021, allowing B.P.J. to fulfil her wish upon beginning middle school to be able to participate in spring girls’ track and field events based on her gender identity rather than what the state would refer to as her “biological sex,” which it defines as “reproductive biology and genetics at birth.”  She had identified as a girl since early childhood, but was told she would not be able to compete as a girl due to the recently enacted state law.

Judge Goodwin, Senior District Judge who was appointed by President Bill Clinton, narrowed his preliminary injunction to B.P.J. as an individual, reserving for later decision the question whether the state law is unlawful on its face.   After refusing to dismiss B.P.J.’s complaint, and reviewing the voluminous record compiled through discovery, Judge Goodwin changed his mind and decided that for purposes of athletic competition transgender girls are not similarly situated with cisgender girls, and thus it was not unlawfully discriminatory for the state to exclude them from girls’ athletic competition.  In that January 2023 ruling, he ordered the preliminary injunction dissolved and subsequently refused to “stay” that dissolution while B.P.J. appealed to the 4th Circuit.

It is quite unusual for a court of appeals panel to issue an order without explanation to revive a preliminary injunction that had been ordered dissolved in a lengthy decision by the district court, and ADF played up this lack of explanation in its Application, suggesting that there was something suspect about it, as it was not accompanied by a detailed explanation of why two of the three panel judges disagreed with Judge Goodwin.

In order to issue a preliminary injunction against the application of a state law, a court has to find that the plaintiff’s challenge to the law is likely to succeed and to explain why, to justify upsetting the legal status quo established by the law.  If the 4th Circuit panel had added to their Order that they agreed with and incorporated by reference Judge Goodwin’s earlier explanation why a preliminary injunction was merited, ADF would not be in a position to make an argument that may be persuasive to the Supreme Court as providing a way to dispose of this Application without stating its own view on the merits of the case.

The 4th Circuit has proved friendly in the past to the argument that excluding transgender students from equal access to all school programs and facilities violates their rights, most notably in its 2020 decision in Grimm v. Gloucester County School Board, in which it held that the Equal Protection Clause and Title IX of the Education Amendments of 1972 required a public high school to allow a transgender boy to use the boys’ restroom facilities.  Ultimately, however, Judge Goodwin concluded that sports competition presented distinctly different issues, and that biological sex was relevant in this context because, he was convinced, allowing a transgender girl to compete in girls’ sports presented unfair competition to cisgender girls.

ADF drove these points home in its Application, asserting that every time B.P.J. competed, she was depriving a cisgender girl of an opportunity to compete, and every time she beat cisgender girls in competition, she was depriving them of the victories they deserved.  ADF pointed to the legislative history of Title IX, which at the time was described as an effort by Congress to provide more opportunities for girls to participate in sports, arguing that letting transgender women compete was undermining the original goal of the statute.

ADF sharply contested the argument that the Supreme Court’s Bostock ruling from 2020, which interpreted Title VII of the Civil Rights Act of 1964 to make it unlawful for an employer to discharge an employee because of their transgender status, could be translated to Title IX without modification.  ADF argued that a rule relevant to employee hiring and discharge was not appropriately applied to the issues in this case, especially noting that regulations under Title IX clearly allow for separate teams and competitions for boys and girls, based on a view that allowing “boys” to compete on girls’ teams would deprive girls of equal opportunity to engage in athletic competition.

B.P.J.’s argument is that a categorical exclusion is inappropriate, that each transgender student should be evaluated on an individual basis depending on the nature of their transition.  ADF argued that this was a unworkable approach, that would mire school districts and courts in difficult and time-consuming determinations about whether a particular transgender girl should be allowed to compete.  They also posed the disingenuous suggestion that any boy could just declare himself a girl to play on a girls’ team, a distortion of B.P.J.’s arguments.

In recent years, the Court has been increasingly deciding significant issues of law and policy in the so-called “shadow docket,” responding to motions and applications for relief from lower court decisions.  These rulings are made without the full trappings of a plenary review, which would include full briefing and oral arguments, that accompanies a grant of certiorari and stretches out the process over a significant period of time.  The “shadow-docket” rulings come quickly, and frequently without extensive written explanation.

ADF’s Application also couches its concerns in the language of federalism, urging the court to defer to the state legislature’s judgment in an area – regulation of public education – that is traditionally a state rather than a federal function.  “This case implicates a question fraught with emotions and differing perspectives,” ADF writes.  “The decision was the West Virginia Legislature’s to make.  The end of this litigation will confirm that it made a valid one.  In the meantime, the Court should set aside the Fourth Circuit’s unreasoned injunction and allow the State’s validly enacted law to go back into effect.”

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

U.S. Education Department to Publish Official Interpretation of Title IX Covering Sexual Orientation and Gender Identity Discrimination

Posted on: June 16th, 2021 by Art Leonard No Comments

Following up on President Joe Biden’s Executive Orders of January 20 and March 8, 2021, and a March 26 Memorandum by the Civil Rights Division of the Department of Justice, the U.S. Department of Education announced on June 16 that it is publishing a “Notice of Interpretation” in the Federal Register confirming that Title IX of the Education Amendments of 1972, which prohibits educational institutions that received federal funding from discriminating against students “on the basis of sex,” applies to discrimination because of sexual orientation or gender identity (transgender status).

The announcement came just a year after the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status, in Bostock v. Clayton County, Georgia.  In Bostock, the Court combined cases from the 2nd, 6th and 11th Circuit Courts of Appeals involving two gay men and a transgender woman, and voted 6-3 that any discrimination against an employee because they are gay, lesbian or transgender is necessarily at least in part because of their sex.  President Donald J. Trump’s first appointee to the Court, Justice Neil Gorsuch, wrote the opinion for the Court by assignment from Chief Justice John Roberts, who joined the opinion together with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.

Although the Bostock decision directly interpreted only Title VII, its reasoning clearly applied to any law that prohibits discrimination “because of sex” or “on the basis of sex,” as the Education Department’s Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, wrote in the Notice issued on June 16.  In his January 20 Executive Order, President Biden directed all Executive Branch agencies to consider the implications of the Bostock decision for their policies and programs, and to apply the reasoning of that decision to the extent it was consistent with purposes of the particular policies and programs.  His March 8 Executive Order explicitly referenced sexual orientation and gender identity in “guaranteeing an educational environment free from discrimination on the basis of sex.”

“After reviewing the text of Title IX and Federal courts’ interpretation of Title IX,” wrote Goldberg, “the Department has concluded that the same clarity [that the Supreme Court found under Title VII] exists for Title IX.  That is, Title IX prohibits recipients of Federal financial assistance from discrimination based on sexual orientation and gender identity in their education programs and activities.  The Department has also concluded for the reasons described in this Notice that, to the extent other interpretations may exist, this is the best interpretation of the statute.”

The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4th Circuit Court of Appeals in the Gavin Grimm case, concerning a transgender boy who was denied access to restroom facilities at a Virginia high school.  The school board in that case filed a petition seeking Supreme Court review on February 24, which would present the Supreme Court with a ready vehicle to weigh in on this issue if it wants to do so.

Reversing the position taken by the Education Department during the Trump Administration, the Notice announces that the Department will investigate sexual orientation and gender identity discrimination allegations by students.  “This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity,” wrote Goldberg.  She pointed out that a determination whether Title IX was violated will depend on the facts of individual cases, and of course Title IX applies only to schools that receive federal funds.

In a footnote, Goldberg pointed out that “educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” citing 20 U.S.C. section 1681(a)(3).  There is a pending federal lawsuit against the Education Department by a group of students from such religious schools claiming that this section violates the 1st Amendment Establishment Clause.  Religious schools have moved to intervene as parties in that lawsuit, claiming that the government may not sufficiently defend their exemption.  The Justice Department has opposed their motion in a recent court filing, asserting that the government will “vigorously” defend the challenged provision.  The religious exemption was a politically necessary compromise to get Title IX adopted by Congress.

While the June 16 Notice states that its interpretation of Title IX “supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation or gender identity,” it goes on to say that this “interpretation does not reinstate any previously rescinded guidance documents.”  This comment is significant, because during the Obama Administration the Education Department issued guidance documents on Title IX compliance requirements that took positions on many of the controversial issues that have been subject to litigation.  Those guidance requirements were cited by school boards and administrators in defending actions they took, even after the guidances were formally rescinded by the Education Department shortly after Betsy DeVos was confirmed as Secretary of Education.  DeVos took the position, later bolstered by a memorandum by Attorney General Jeff Sessions in October 2017, that Title IX did not cover sexual orientation or gender identity discrimination.

Miguel Cardona, Biden’s Secretary of Education, told The New York Times in an interview published on June 16 that “Students cannot be discriminated against because of their sexual orientation or their gender identity,” but left unclear the question whether his Department would be challenging state laws that ban transgender girls from competing in school sports.  He stated, “We need to make sure we are supporting all students in our schools,” but he did not get specific about particular challenged policies.  Making clear that “all” really means “all,” the Notice says that the Department’s Office of Civil Rights “carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.”

The U.S. Court of Appeals for the 9th Circuit recently heard arguments in the State of Idaho’s appeal from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls.  If this issue ends up in the Supreme Court, the Biden Administration will have to take a position one way or the other, just as it will be pressed to take a position if the Court grants the petition by the Gloucester County School Board in the Gavin Grimm case.  A federal court in Connecticut recently dismissed a lawsuit by a group of cisgender female high school athletes challenging a state policy of allowing transgender girls to compete, finding that the plaintiffs lacked standing to bring the issue to the court.

The Education Department’s interpretation of Title IX is not binding on the federal courts, but is entitled to some degree of deference under principles of administrative law.   After DeVos and Sessions “rescinded” the Obama Administration’s interpretation and guidance documents, many federal courts continued to rule in favor of transgender students and school administrators who had adopted policies allowing transgender students to use restroom facilities.  The lower federal courts have been united up to now in rejecting claims by parents and students that allowing transgender students to use restroom and locker room facilities violates the constitutional privacy rights of non-LGBTQ students, and the Supreme Court has so far refrained from hearing those cases.

As President Biden has boasted about how many LGBTQ people he has appointed, it is worth noting that both the Justice Department Civil Rights Division March 26 Memo and the June 16 DOE Notice were authored by out lesbian appointees, Pamela Karlan and Suzanne Goldberg.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

Posted on: February 20th, 2021 by Art Leonard No Comments

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity.  The School Board is appealing from an August 2020 decision by the 4th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems.  The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims.  But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX.  However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students.  Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”  This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review.  Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt.  While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up.  The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU.  Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

Gavin Grimm Victorious: U.S. Appeals Court Reject’s School Board’s Anti-Trans Restroom Policy

Posted on: August 29th, 2020 by Art Leonard No Comments

Capping litigation that began in 2015, a three-judge panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit ruled by a vote of 2-1 on August 26 that the Gloucester County (Virginia) School Board violated the statutory and constitutional rights of Gavin Grimm, a transgender boy, when it denied him the use of boys’ restrooms at Gloucester County High School.  Grimm v. Gloucester County School Board, 2020 U.S. App. LEXIS 27234, 2020 Westlaw 5034430.

This may sound like old news, especially since other federal appellate courts, most notably the Philadelphia-based 3rd Circuit, the Chicago-based 7th Circuit, the San Francisco-based 9th Circuit and the Atlanta-based 11th Circuit, have either ruled in favor of the rights of transgender students or rejected arguments against such equal access policies by protesting parents and cisgender students. But Grimm’s victory is particularly delicious because the Trump Administration intervened at a key point in the litigation to switch sides in the case after the Obama Administration had supported Grimm’s original lawsuit.

Grimm, identified as female at birth, claimed his male gender identity by the end of his freshman year, taking on a male name and dressing and grooming as male. Before his sophomore year, he and his mother spoke to the high school principal and secured agreement that he could use boys’ bathrooms, which he did for several weeks without incident.  But as word spread that a transgender boy was using the facilities, parents became alarmed and deluged the school board with protests, leading to two stormy public meetings and a vote that transgender students in the district (of which Grimm was then the only known one) were restricted to using a single-occupant restroom in the nurse’s office or restrooms consistent with their “biological sex,” which the district defined as the sex identified at birth.

After Grimm filed his lawsuit represented by the American Civil Liberties Union (ACLU) seeking a court order to allow him to resume using the boys’ restrooms in his school, the Obama Administration weighed in with a letter to the court siding with Grimm’s argument that the school board’s policy violated Title IX of the Education Amendments of 1972, which bans sex discrimination against students.  Despite this positive letter, the district judge granted the school board’s motion to dismiss the Title IX claim, reserving judgment on Grimm’s alternative claim under the Equal Protection Clause of the 14th Amendment.

Grimm appealed the dismissal.  A three-judge panel of the 4th Circuit then ruled that the district court should have deferred to the Obama Administration’s interpretation of Title IX and not dismissed that claim.  The school board sought review from the U.S. Supreme Court, which granted the petition and scheduled the case for argument in March 2017.  The timing of this argument guaranteed that Grimm would never get to use the boys’ restrooms at the high school before graduating that spring.

After the Trump Administration took office in January 2017, the Justice and Education Departments announced that they were “withdrawing” the Obama Administration’s interpretation of Title IX.  Without taking a formal position on the interpretive question, they criticized the Obama Administration as inadequately reasoned.  But subsequently, Attorney General Jeff Sessions announced his disagreement with the Obama Administration’s interpretation of Title IX and more generally the prior administration’s position that transgender people are protected by all federal laws banning sex discrimination.  In an October 2017 memorandum to all executive agencies, Sessions announced that laws banning sex discrimination apply only narrowly to a claim that an individual suffered discrimination because he was a biological male or she was a biological female, defined by how they were identified at birth.

Since the 4th Circuit had premised its reversal of the dismissal of Grimm’s Title IX claim on its conclusion that the district court should have deferred to the Obama Administration’s interpretation, the basis for that ruling was effectively gone.  The Solicitor General formally notified the Supreme Court, which cancelled the scheduled hearing, vacated the 4th Circuit’s decision, and sent the case back to the District Court without any ruling by the Supreme Court.  In the interim, the district court had responded to the 4th Circuit’s decision by issuing an injunction requiring the school board to let Grimm use the boys’ restrooms, but that was stayed while the appeal was pending in the Supreme Court and within months of the Supreme Court’s action of March 2017, Grimm had graduated from high school.

The Gloucester County School Board than urged the district court to dismiss the case as moot, since Grimm was no longer a student.  Grimm insisted that the case should continue, because he should be entitled to seek damages for the discrimination he suffered and he wanted to be able to use the male facilities if he returned to the school as an alumnus to attend events there.  The mootness battle raged for some time, the complaint was amended to reflect the new reality that Grimm was no longer a student, and a new issue emerged when Grimm requested that the school issue him an appropriate transcript in his male name identifying him as male, since he was stuck in the odd situation of being a boy with a high school transcript identifying him as a girl.  By this time, he had gotten a court order approving his name change and a new birth certificate, but the school persisted in denying him a new transcript, raising frivolous arguments about the validity of the new birth certificate.

Thus repurposed, the case went forward.  Ultimately the district court ruled in Grimm’s favor on both his statutory and constitutional claims, but the school board was not willing to settle the case, appealing again to the 4th Circuit.  The August 26, 2020, ruling is the result.

The ACLU publicized this case heavily from the beginning, winning national media attention and an army of amicus parties filing briefs in support of Grimm’s claim along the away.  On May 26, 2020, the case was argued in the 4th Circuit before a panel of two Obama appointees, Judge Henry Floyd and Judge James A. Wynn, Jr., and an elderly George H.W. Bush appointee, Judge Paul Niemeyer (who had dissented from the original 4th Circuit ruling in this case).  In light of the rulings by other courts of appeals on transgender student cases and the Supreme Court’s decision in Bostock v. Clayton County, Georgia, on June 25, 2020, holding that discrimination because of transgender status is discrimination “because of sex” under Title VII of the Civil Rights Act, the result in this new ruling was foreordained.

Judge Floyd’s opinion for the panel, and Judge Wynn’s concurring opinion, both go deeply into the factual and legal issues in the case, constituting a sweeping endorsement of the right of transgender students to equal treatment in schools that receive federal funding, a prerequisite for coverage under Title IX.  Furthermore, public schools are bound by the Equal Protection Clause, and the court’s ruling on the constitutional claim was just as sweeping.

The court first rejected the school board’s argument that the case was moot, with Grimm having graduated and now being enrolled in college.  Since damages are available for a violation of Title IX, it was irrelevant that Grimm was no longer a student.  He had been barred from using the boys’ restrooms for most of his sophomore and all of his junior and senior years.  Even though the district court granted him only nominal damages, his claim for damages made this a live controversy, as did the school’s continuing refusal to issue him a proper transcript, which the court held was also illegal.

Turning to the merits, Judge Floyd first tackled the Equal Protection claim.  The court rejected the School Board’s argument that there was no discrimination against Grimm because he was not “similarly situated” to cisgender boys.  Judges Floyd and Wynn firmly asserted that Grimm is a boy entitled to be treated as a boy, regardless of his sex as identified at birth.  This judicial endorsement of the reality of gender identity is strongly set forth in both opinions.

Judge Niemeyer’s dissent rests on a Title IX regulation, which Grimm did not challenge, providing that schools could maintain separate single-sex facilities for male and female students, and the judge’s rejection that Grimm is male for purposes of this regulation.  Niemeyer insisted that Title IX only prohibits discrimination because of “biological sex” (a term with the statute does not use).  As far as he was concerned, the school did all that the statute required it to do when it authorized Grimm to use the nurse’s restroom or the girls’ restrooms.  But the majority of the panel accepted Grimm’s argument that the school’s policy subjected him to discriminatory stigma, as well as imposing physical disadvantages.  As a boy, he would not be welcome in the girls’ restroom, and the nurse’s restroom was too far from the classrooms for a break between classes.  As a result, he generally avoided using the restroom at school, leaving to awkward situations and urinary tract infections.

As the case unfolded, the school constructed additional single-user restrooms open to all students regardless of sex and made some modifications to the existing restrooms to increase the privacy of users, but the single-user restrooms were not conveniently located and cisgender students did not use them, reinforcing the stigma Grimm experienced.  Stigma due to discrimination has long been recognized by the federal courts as the basis for a constitutional equal protection claim.

The school’s actions undermined Judge Niemeyer’s argument that the school board policy was justified by the need to protect the privacy of cisgender students, an argument that has been specifically rejected by the 3rd and 9th Circuit cases when they rejected cases brought by parents and cisgender students challenging school policies that allowed transgender students to use appropriate restrooms.  Judge Niemeyer colorfully wrote, “we want to be alone — to have our privacy — when we ‘shit, shower, shave, shampoo, and shine.’”  (Do high school buys shave in the boys’ room as a general practice?)  But the panel smajority was not persuaded that it was necessary to exclude Grimm from the boys’ restrooms to achieve this goal.  After all, the only way Grimm as a transgender boy could relieve himself was by using an enclosed stall, lacking the physical equipment to use a urinal, so he would not be disrobing in front of the other students.  (Let’s be real here.)

Judge Floyd’s opinion did not rely on the Bostock ruling for its constitutional analysis, instead noting that many circuit courts of appeals have accepted the argument that government policies discriminating because of gender identity are subject to heightened scrutiny, and are thus presumptively unconstitutional unless they substantially advance an important state interest.  The majority, contrary to judge Floyd, did not think that excluding Grimm advanced an important state interest, especially after the School Board had altered the restrooms to afford more privacy, an obvious solution to any privacy issue.

Turning to the statutory claim, Judge Floyd pointed out that judicial interpretation of Title IX has always been informed by the Supreme Court’s Title VII rulings on sex discrimination, so the Bostock decision carried heavy precedential weight and the school board’s arguments on the constitutional claim were no more successful on this claim.  The School Board lacked a sufficient justification under Title IX to impose unequal access to school facilities on Grimm.

At this point, the Gloucester County School Board can read the writing on the wall and concede defeat, or it can petition the 4th Circuit for en banc review (review by the full 15-judge bench of the circuit court), or it can seek Supreme Court review a second time.  As to the en banc situation, the 4th Circuit is one of the few remaining federal circuit courts with a majority of Democratic appointees, as several of Bill Clinton’s appointees are still serving as active judges and all six of Obama’s appointees are still serving, leaving a majority of Democratic appointees on the full bench, so seeking en banc review, which requires that a majority of the active judges vote to review the case, would be a long shot.

On the other hand, Justice Neil Gorsuch’s decision for the Supreme Court in Bostock refrained from deciding – since it wasn’t an issue in that case – whether excluding transgender people from restroom facilities violates sex discrimination laws, and this case would provide a vehicle for addressing that issue.  It takes only four votes on the Supreme Court to grant review of a lower court case, so there may be another chapter in the saga of Grimm’s legal battle. It is also possible that the St. Johns County School District in Florida, which lost in the 11th Circuit in a virtually identical ruling, might also seek Supreme Court review, so one way or another, this issue may yet get on to the Court’s Docket this term or next.

ACLU attorney Joshua Block has been representing Grimm throughout the struggle, but the case was argued in May by cooperating attorney David Patrick Corrigan, a litigation specialist at the Richmond firm of Harman Clayton Corrigan & Wellman.  A local Richmond firm represented the School Board, confronting Virginia Attorney General Mark Herring supporting Grimm with an amicus brief.  The overwhelming majority of amicus briefs filed, many by state attorneys general, sided with Grimm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Federal Court Vacates Transgender Protection under Obamacare

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard 2 Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

Federal District Court Denies Preliminary Injunction Requiring School District to Segregate Restroom and Locker Facilities by Biological Sex of Students

Posted on: December 31st, 2017 by Art Leonard No Comments

 

Accepting a report and recommendation from U.S. Magistrate Judge Jeffrey T. Gilbert, U.S. District Judge Jorge L. Alonso ruled on December 29, 2017, that a group of parents and cisgender students are not entitled to a preliminary injunction blocking Illinois’s Township High School District 211 from allowing transgender students to use restrooms and locker rooms consistent with their gender identity. Students and Parents for Privacy v. United States Department of Education, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill., E.D.).

The dispute grew out of prior legal action by a transgender girl at William Fremd High School in Palatine, Illinios, a suburb of Chicago, seeking to use the girls’ facilities. During the Obama Administration, the U.S. Education Department responded to the student’s complaint by negotiating a settlement agreement with the school district under which Student A, as she was identified, would be allowed to use these facilities.  The school district’s willingness to settle turned on a formal Guidance issued by the U.S. Education and Justice Departments construing Title IX to require such a policy.

Reacting to the settlement, an ad hoc group of parents of students at Fremd High School, together with some girls who attend the high school, brought this suit in May 2016, represented by Alliance Defending Freedom, asserting that the girls had a constitutional and statutory right not to have “biological boys” present in their restroom and locker room facilities where they could see girls in a state of undress. The lawsuit targeted the U.S. Departments of Education and Justice for issuing the Guidance and negotiating the settlement.  The school district was also named as a defendant.  Student A, together with two other transgender students in the district and their parents, were granted intervenor status as defendants.

Magistrate Judge Gilbert, to whom the motion for preliminary injunction had been referred by Judge Alonso, issued his report on October 18, 2006, concluding that plaintiffs were unlikely to prevail on their claims, and recommending that the motion be denied. Plaintiffs filed objections with Judge Alonso.

While the objections were pending there were several developments significantly affecting the case. Donald J. Trump was elected president a few weeks after the Magistrate Report was issued, and he then appointed new leadership to the two Departments after his term began on January 20, 2017.  The two Departments then jointly withdrew the Obama Administration Title IX Guidance, opining that it had not been properly issued and that the matter required more study, but not taking any position on whether transgender students had such protection under Title IX, commenting that these issues should be decided at the local level.  Thus, the Trump Administration was, at least as of then, “neutral” on the question, although since then Attorney General Sessions and the Justice Department have gone on record as opposing an expansive interpretation of Title IX to embrace gender identity (and sexual orientation) discrimination claims.

However, shortly after the withdrawal of the Guidance, the 7th Circuit Court of Appeals ruled in a similar case, Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (petition for certiorari pending), that Title IX does extend to gender identity discrimination claims, and upheld an injunction ordering a Wisconsin school district to allow a transgender boy to use the boys’ restroom facilities at a public high school.

The Trump Administration actions mooted the part of the lawsuit against the federal government defendants, as the policy the plaintiffs are challenging was no longer federal executive branch policy. Thus, the plaintiffs agreed to drop the federal defendants from the case.  Also, because Student A has graduated, the plaintiffs’ specific objection to District 211’s agreement with the Education Department concerning facilities access for that student was mooted as well.  However, Intervenor Students B and C and their parents, and possibly other transgender students in District 211, would present the same access issues, so the plaintiffs’ claims against the District under Title IX and the Constitution continue so long as the District does not disavow the access policy to which it had agreed.

In essence, Plaintiffs’ Title IX complaint relies on a long-standing Title IX regulation that authorizes schools to maintain sex-separate restroom and locker room facilities, provided that the facilities are comparable in scope and quality. Plaintiffs argue that this authorization of sex-segregated facilities recognizes the privacy concerns of the students (and their parents), and that requiring students to have to share such facilities with transgender students of a different “biological” sex contradicts those privacy concerns.  The Magistrate had rejected this argument in October 2016, and the 7th Circuit’s Whitaker decision subsequently confirmed the Magistrate’s understanding of this issue.

Wrote Judge Alonso, “Discrimination against transgender individuals is sex discrimination under Price Waterhouse, the 7th Circuit explained, because ‘by definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.’  Following Price Waterhouse and its progeny, the Court reasoned that a ‘policy that requires an individual to use a restroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance which in turn violates Title IX.  Providing a gender-neutral alternative was insufficient to relieve the school district from liability under Title IX, the Seventh Circuit explained, because it was ‘the policy itself which violates the Act.”

The plaintiffs tried to distinguish the Whitaker case because it addressed only restrooms, not locker rooms, and because, they insisted, the decision was so “astonishingly wrong” that its reasoning undercuts its “worth even as persuasive authority.”  The problem with that, of course, is that Illinois is in the same 7th Circuit as Wisconsin, so Whitaker is not just persuasive authority; it is binding on Judge Alonso.

The judge insisted that nothing in Whitaker “suggests that restrooms and locker rooms should be treated differently under Title IX or that the presence of a transgendered student in either, especially given additional privacy protections like single stalls or privacy screens, implicates the constitutional privacy rights of others with whom such facilities are shared.  Plaintiffs’ critiques notwithstanding,” he continued, “Whitaker reflects a straightforward application of the long-standing line of sex stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination claims.”  Thus, under Whitaker, plaintiffs could not meet the first test for preliminary injunctive relief: showing the probability that they would prevail on the merits of their claim.  Judge Alonso devoted several paragraphs to explaining why the plaintiffs’ attempts to distinguish or disparage Whitaker were unavailing in meeting their burden under the motion.

“Furthermore,” he wrote, “even if Plaintiffs had shown a likelihood of success on the merits, they would still not be entitled to a preliminary injunction because they have not shown they are likely to suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at law in the event that they ultimately succeed on their claims.” Indeed, as far as demonstrating harm goes, “the only specific harm to which they point is the risk of running late to class by using alternate restrooms to avoid sharing with a transgender student and the ‘embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation , and loss of dignity’ allegedly felt by Student Plaintiffs arising from such sharing.”  The Magistrate [Judge Gilbert] had found that these were insufficient to establish irreparable injury, because courts routinely award monetary damages for emotional distress, and “the risk of being late to class has not been shown to have any meaningful impact on Student Plaintiffs’ education.”

Judge Alonso considered it worth nothing that the District’s practice of letting transgender students use appropriate facilities had been going on for nearly three years when this lawsuit was filed, but “either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” as no examples of actual incidents were proffered in support of their motion. “The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm,” wrote Alonso.  “This Court agrees with the Magistrate Judge’s assessment, ‘there is no indication that anything has negatively impacted Girl Plaintiffs’ education.”  Judge Alonso overruled the objections, and accepted the Magistrate’s recommendation to deny the preliminary injunction.

Now that pretrial motions have been disposed of, the court gave the defendants until January 30, 2018, to file an answer to the complaint, and set a status hearing for February 8. In light of the Whitaker case and Judge Alonso’s strongly-worded opinion, one would expect the school district to promptly file a motion for summary judgment, if ADF does not decide within the next few weeks to fold up its tent and steal away.  Of course, what could change the situation dramatically would be a grant of certiorari by the Supreme Court of the school district’s petition in the 7th Circuit Whitaker case.  But the parties in that case were reportedly close to a settlement and had asked the Supreme Court to extend the time for Whitaker’s counsel to file a response to the cert petition, so it appears likely that a cert grant will not be forthcoming during the month of January leading up to School District 211’s court-imposed deadline to respond to the complaint in this case.

The transgender student Intervenors are represented by the ACLU of Illinois and the national ACLU Foundation, with pro bono attorneys from Mayer Brown LLP.