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Posts Tagged ‘Title VII gender identity discrimination’

Alliance Defending Freedom Loses Appeal in Transgender High School Athletics Case

Posted on: December 19th, 2022 by Art Leonard No Comments

A unanimous three-judge panel of the New York City-based U.S. Court of Appeals for the 2nd Circuit has rejected an appeal by the conservative religious litigation group Alliance Defending Freedom (ADF) from a ruling by Senior U.S. District Judge Robert N. Chatigny, who last year had rejected a challenge to the Connecticut Interscholastic Athletic Conference (CIAC) policy of allowing transgender students to participate in high school athletic competitions consistent with their gender identity.

The December 16 opinion for the 2nd Circuit panel in Soule v. Connecticut Association of Schools, 2022 U.S. App. LEXIS 34791, 2022 WL 17724715, by Judge Denny Chin found in agreement with Judge Chatigny that the plaintiffs (four cisgender women who competed on their high school track teams in CIAC-sponsored competition) lacked standing for the injunctive relief they were seeking, and that their claim for damages was barred because the defendants were not on notice when they accepted federal funding that their transgender participation policy would violate Title IX of the Education Amendments of 1972.

Indeed, the court found that Title IX most likely has the opposite effect, requiring schools to allow transgender students to compete consistent with their gender identity.  ADF, claiming in a press release that the court “got it wrong” and that it was discriminatory for girls to compete against “males” in athletics, announced that it was considering “all options”, which could include a possible appeal, either requesting n banc review by the 2nd Circuit or requesting the Supreme Court to hear the case. (ADF routinely calls transgender girls “boys” or “males” in its activities attacking affirmative transgender rights policies.)

The plaintiffs – Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti – were high school track competitors who claimed that allowing two transgender girls – Andraya Yearwood and Terry Miller – to compete with them in CIAC-sponsored matches unfairly discriminated against plaintiffs on the basis of their sex.  Yearwood and Miller finished ahead of each of the plaintiffs in various track events during 2019 competition, although there were also events in which one or more of the plaintiffs finished ahead of the transgender girls.

The plaintiffs claimed that the CIAC policy violates Title IX, which forbids schools that receive federal funding from denying “equal educational opportunity on the basis of sex.”  Title IX provided the impetus for school programs to significantly increase opportunities for girls to participate in athletics since it was passed in 1972.  More recently, it has been interpreted by many (but not all) federal courts to prohibit discrimination because of gender identity.  This interpretation was bolstered in June 2020 when the U.S. Supreme Court ruled in Bostock v. Clayton County, 140 S. Ct. 1731, that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” extends to claims of discrimination because of “transgender status.”  Federal courts have generally looked to Title VII interpretations of “discrimination because of sex” when interpreting Title IX, despite slight variations in the wording of the statutes (“because of sex” versus “on the basis of sex”).

The plaintiffs alleged that the CIAC policy “is now regularly resulting in boys displacing girls in competitive track events in Connecticut,” that “students who are born female now have materially fewer opportunities to stand on the victory podium, fewer opportunities to participate in post-season elite competition, fewer opportunities for public recognition as champions, and a much smaller chance of setting recognized records, than students who are born male.”  They claimed a “direct violation” of Title IX.

But all the plaintiffs were able to compete, and in the entire state of Connecticut there were only two transgender girls with whom they were competing.  Furthermore, by the time their suit was filed and Judge Chatigny ruled on the defendants’ motions to dismiss the case, both of the transgender girls (who were permitted to intervene as defendants represented by the ACLU) had graduated and there were no transgender girls participating in CIAC-sponsored meets.  The plaintiffs had asked the court to order the CIAC to bar CIAC from enforcing its policy and to delete the transgender girls from the records of the matches in which they had competed, which would elevate one or more of the plaintiffs to higher standing in some of those matches.

The Connecticut Commission on Human Rights and Opportunities also intervened as a defendant in support of the CIAC policy.  Connecticut’s human rights law forbids gender identity discrimination.

Judge Chatigny concluded that the plaintiffs lacked standing for the relief they were seeking.  Some of their claims were deemed mooted by the passage of time and subsequent events.  By the time the motion to be dismiss was decided, the plaintiffs, who were near graduation from high school, were no longer affected by the policy, so lacked standing to seek an injunction against its enforcement.  Also, the plaintiffs alleged that their athletic records were crucial to their ability to gain college admissions and subsequent employment, but by the time the Court of Appeals was considering this appeal, the plaintiffs had all been admitted to college and the impact of their final standing in CIAC competitions on their employment opportunities was deemed too speculative to support a claim of actual injury, which is necessary for the relief they were seeking.  The Court of Appeals agreed with Judge Chatigny and affirmed the denial of injunctive relief.

As to the plaintiffs’ damage claims, under a 1981 Supreme Court precedent, Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, a damage claim under a statute that imposes a federal non-discrimination requirement on a defendant because the defendant is the recipient of federal funds may not be made unless the funding recipient was on notice when they decided to accept the funding about the specific non-discrimination obligation to which they were subjecting themselves by accepting the money.

The burden is on the plaintiff to show that defendants were “on notice” that by letting transgender girls compete, they were violating the Title IX rights of cisgender girls.  “We conclude that only the opposite has been shown here,” wrote Judge Chin for the Court of Appeals.

The judge first noted that “guidance” from the Department of Education (DOE) under Title IX “has fluctuated with the changes in presidential administrations.”  In 2016, during the Obama Administration, DOE advised schools, based on the Equal Employment Opportunity’s decision that Title VII covered gender identity discrimination, that schools could not discriminate against transgender students, and this required allowing them to participate in school athletics.  In 2017, with the Trump Administration, that guidance was withdrawn by DOE on the ground that it needed to be “considered more completely.”  In 2020, DOE sent the CIAC a letter of “impending enforcement action” reacting to publicity about this lawsuit, interpreting Title IX to require that gender-specific sports teams be separated based on “biological sex,” but that was withdrawn by the new Biden Administration in February 2021 before any action was taken by DOE against the CIAC.

Perhaps more significantly, Judge Chin pointed out, although this precise issue has not yet been decided by other courts of appeals in the sports context, there are have been numerous court of appeals decisions in other circuits, many of which were denied review by the Supreme Court, holding that schools covered by Title IX cannot discriminate against transgender students, and cases holding that allowing transgender students to use restrooms consistent with their gender identity do not violate the Title IX rights of cisgender students.

“Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender specific sports teams,” wrote Chin, “such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the Policy violates Title IX.”  The court also rejected ADF’s argument that the plaintiffs were entitled to an exception from the Pennhurst “notice” rule because defendants “intentionally” discriminated against the plaintiffs, commenting that “the Policy could not be considered ‘intentional conduct that violates the clear terms of’ Title IX, given Bostock and the decisions from other Courts of Appeals.  Thus the ‘intentional conduct exception is inapplicable here.’”

In its press release denouncing the decision, ADF pointed out that 18 states have now passed laws requiring that participation in sex-specific athletic competition must be based on “biological sex” as identified at birth.  However, if Title IX protects transgender girls from being excluded from participating in such sports, the state laws would be preempted by federal law.  Although the 2nd Circuit decision does not directly rule on the merits of that question, Judge Chin’s ruling strongly suggests that attempts by schools to exclude transgender girls could subject the schools to Title IX liability.

Senior Judge Chatigny was appointed by President Bill Clinton.  Judge Chin was appointed to the 2nd Circuit Court of Appeals by President Barack Obama.

 

 

Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

Posted on: April 3rd, 2019 by Art Leonard No Comments

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).