New York Law School

Art Leonard Observations

Posts Tagged ‘transgender discrimination’

Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

Posted on: October 31st, 2018 by Art Leonard No Comments

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

Obscure Brooklyn Appellate Ruling Protects Transgender People from Discrimination Without Saying So

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

Talk about “hiding the ball!” On June 6, a unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, confirmed an Order by the State Division of Human Rights (SDHR), which had adopted a decision by an agency administrative law judge (ALJ) ruling that a Port Jervis employer violated the human rights law when it discharged a transgender employee.

But nobody reading the court’s short memorandum opinion, or the short agency opinion and order, would have any idea that the case involved a gender identity discrimination claim. Surprisingly, given the novelty of the legal issues involved, only the administrative law judge’s opinion, an internal agency document, communicates what the case is actually about.

The case is Matter of Advanced Recovery, Inc. v. Fuller, 2018 N.Y. Slip Op 03974, 2018 N.Y. App. Div. LEXIS 3969, 2018 WL 2709861 (N.Y. App. Div., 2nd Dept., June 6, 2018).

Erin Fuller, a transgender woman, was fired by Mark Rea, the owner and chief executive of Advanced Recovery, Inc., the day Fuller presented a supervisor with a copy of a court order authorizing her change of name from Edward to Erin and the supervisor passed the document to Rea. Rea called Fuller into his office and, according to Fuller, said in the presence of the supervisor, “Now I have a problem with your condition.  I have to let you go.”

Rea and other company officials had been aware for some time that Fuller was transitioning, since she had presented them with a letter from her doctor in 2009 explaining her gender dysphoria diagnosis and how she would be transitioning, and on at least one occasion Rea had reacted adversely to Fuller’s mode of dress, but it wasn’t until he was presented with the legal name change that Rea apparently decided that he had enough and no longer wanted Fuller, a good worker who had been with the company more than two years.

When Fuller went back later to pick up her final paycheck, a supervisor told her that “he felt bad, but your job would be waiting for you as long as you came in wearing normal clothes.”

Attempting to escape possible liability, Rea and the company’s lawyer later came up with a termination letter that cited other reasons for terminating Fuller and said nothing about her name change, mode of dress, or gender identity, but they never sent her that letter, which first surfaced when it was offered as evidence at the SDHR law judge’s hearing on Fuller’s discrimination claim.

The discharge took place on August 4, 2010, several years before Governor Andrew Cuomo directed the SDHR to adopt a policy under which gender identity discrimination claims would be deemed to come within the coverage of the state’s ban on sex discrimination.

Fuller filed her complaint with SDHR on October 13, 2010. On the complaint form, she checked the boxes for “sex” and “disability” as the unlawful grounds for her termination.  After the company was notified of the complaint, it apparently prompted local police to arrest Fuller for altering a medical prescription, a spurious charge based on her changing the pronouns on the note written by a doctor on a prescription form after she missed a few days of work due to hospital treatment.  At the time, she didn’t think of amending her discrimination charge to allege retaliation, unfortunately, waiting until the hearing to raise the issue, by which time the judge had to reject her motion because she waited too long to assert the retaliation claim.

The agency concluded, after investigation, that it had jurisdiction over the discharge claim and set the case for a public hearing before an ALJ. At the hearing, Fuller was represented by attorneys Stephen Bergstein and Helen Ullrich, who persuaded the judge that Fuller had a valid claim and that the reasons given by the employer for firing her were pretexts for discrimination.  The same lawyers represented Fuller when the company appealed the judge’s ruling to the Appellate Division.

Relying on a scattering of trial court decisions holding that transgender people are protected from discrimination under the New York Human Rights Law, ALJ Robert M. Vespoli concluded that Fuller “states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals.”

“Complainant also has a disability,” wrote Vespoli, “as that term is defined in the Human Rights Law.” The New York Human Rights Law’s definition of “disability” is broader and more general than the federal definition in the Americans with Disabilities Act, and New  York law does not have the explicit exclusion of coverage for people with “gender identity disorders” that is in the federal law.  Under New York’s law, a disability is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”  The statute provides that a disability may also be a “record of such impairment or the perception of such impairment.”

“During the relevant time period,” wrote Vespoli, “Complainant was diagnosed with gender dysphoria. This condition falls within the broad definition of disability recognized under the Human Rights Law,” citing a 2011 decision by the agency to recognize its jurisdiction in a transgender discrimination case. The employer could not claim ignorance about Fuller’s transition, because in 2009 she had presented the company with her doctor’s letter explaining the situation, after which she began to dress and groom differently.

In his opinion dated February 20, 2015, Judge Vespoli rejected the employer’s evidence of other reasons for the discharge, finding that the proffered letter was a document created after the discharge for the purpose of litigation, that it had never been delivered to Fuller, and that the reasons it offered were pretexts for discrimination. The judge recommended awarding Fuller $14,560.00 in back pay and $30,000.00 for mental anguish caused by the discrimination.  He also recommended imposing a civil penalty on the company of $20,000.00.

The company filed objections to Vespoli’s recommendations with the Commission, but did not specifically object to Vespoli’s finding that Fuller had a disability or that the agency had jurisdiction over this case on grounds of sex and disability. The Commission’s Notice and Final Order of April 1, 2015, overruling without discussing the company’s evidentiary objections and adopting the judge’s recommendations and findings, said nothing about the details of the case, beyond noting that Fuller had complained of discrimination because of sex and disability.

The company’s appeal to the court again did not explicitly contest the ruling that the statute covers the case, instead urging the court to find that the ruling was not supported by substantial evidence of discrimination. Perhaps because the company’s appeal did not raise the question whether the Human Rights Law bans discrimination because of gender identity, the Appellate Division’s ruling also  did not  mention that the complainant is a transgender woman, and did not discuss the question whether this kind of case is covered under the disability provision.  Rather, the court’s opinion recites that the complainant alleged “that the petitioners discriminated against her on the basis of sex and disability,” and that the agency had ruled in her favor.  “Here there is substantial evidence in the record to support the SDHR’s determination that the complainant established a prima facie case of discrimination, and that the petitioners’ proffered reasons for terminating the complainant’s employment were a pretext for unlawful discrimination.  The petitioner’s remaining contentions are either not properly before this Court or without merit.”

Of course, Fuller’s brief in response to the appeal would have mentioned this issue, and SDHR, which cross-petitioned for enforcement of its Order, mentioned the issue as well.

The court wrote that there is “substantial evidence in the record” to support the agency’s ruling, so the court presumably looked at the record, including the ALJ’s opinion, and was aware that this was a gender identity discrimination claim.  The appellate panel surely knew that this was an important issue in the case.

Cursory research in published New York court opinions would show that there is no prior appellate ruling in New York finding that a gender identity claim can be asserted under the Human Rights Law’s prohibited grounds of “sex” and “disability.” The court took its time on this case, waiting until June 6, 2018, to issue a ruling upholding an administrative decision that was issued on April 1, 2015.  Despite taking all this time, the court produced an opinion that never mentions these details, that provides no discussion of the ALJ’s analysis of the jurisdictional issue, and that does not expressly state agreement with the trial court ruling that Judge Vespoli specifically cited in support of his conclusions.

This may be the first case in which a New York appellate court has affirmed a ruling holding that an employer violated the state’s Human Rights Law by discriminating against an employee because of her gender identity, but you wouldn’t know it by reading the court’s opinion. While the court’s failure to mention the doctrinal significance of its ruling may be explainable because the employer did not raise the issue on its appeal, it’s omission nonetheless renders the decision basically useless as an appellate precedent.

One can fairly criticize the court for failing to play its proper role in a system of judicial precedent to produce a decision that can be referred to by later courts. The judges whose names appear on this uninformative opinion are Justices Mark C. Dillon, Ruth C. Balkin, Robert J. Miller, and Hector D. LaSalle.

Governor Cuomo’s directive, issued while this case was pending before the Appellate Division, actually reinforced existing practice at the State Division of Human Rights, as the earlier opinions cited in Judge Vespoli’s opinion show, but in the absence of an explicit appellate ruling, enactment of the Gender Identity Non-Discrimination Act remains an important goal and its recent defeat in a Senate committee after renewed passage by the Assembly is more than merely a symbolic setback for the community.

A legal team of Caroline J. Downey, Toni Ann Hollifield and Michael K. Swirsky represented SDHR before the Appellate Division, which had cross-petitioned for enforcement of its decision. Port Jervis lawyer James J. Herkenham represented the company, and Stephen Bergstein of Bergstein & Ullrich presented Fuller’s response to the appeal.

 

 

 

 

 

 

Federal Court Rejects Gloucester School District’s Motion to Dismiss Gavin Grimm’s Case

Posted on: May 23rd, 2018 by Art Leonard No Comments

Opening up a new chapter in the continuing battle of Gavin Grimm to vindicate his rights as a transgender man, U.S. District Judge Arenda L. Wright Allen issued an Order on May 22 denying the Gloucester County (Virginia) School Board’s motion to dismiss the latest version of the case Grimm filed back in July 2015, prior to his sophomore year at Gloucester High School.

During the summer of 2014, Grimm’s transition had progressed to the point where he and his mother met with high school officials to tell them that he was a transgender boy and “would be attending school as a boy,” wrote Judge Allen.  They agreed to treat him as a boy, including allowing him to use the boys’ restrooms.  He did so for about seven weeks without any incident, until complaints by some parents led the school board to adopt a formal policy prohibiting Grimm from using the boys’ restrooms.  The school established some single-user restrooms that were theoretically open to all students, but Grimm was the only one who used them because they were not conveniently located to classrooms.

“Because using the single-user restrooms underscored his exclusion and left him physically isolated,” wrote Judge Allen, “Mr. Grimm refrained from using any restroom at school.  He developed a painful urinary tract infection and had difficulty concentrating in class because of his physical discomfort.”  During the summer after his sophomore year, he filed his lawsuit, alleging violations of Title IX – a federal statute that forbids schools from discriminating because of sex – and the Equal Protection Clause of the Constitution.

Meanwhile, Grimm had begun hormone therapy in December 2014, “which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.”  In June 2015, he received a new Virginia identification car from the Motor Vehicles Department designated him as male.  During the summer of 2016, he had chest-reconstruction surgery, a necessary step to get the circuit court to issue an order changing his sex under Virginia law and directing the Health Department to issue him a birth certificate listing him as male.  He received the new birth certificate in October 2016.  Thus, as of that date, Grimm was male as a matter of Virginia law.

Yet, despite all these physical and legal changes, the School District clung to its contention that his “biological gender” was female and that he could not be allowed to use boys’ restrooms at the high school.  The school maintained this prohibition through the end of the school year, when Grimm graduated.

Meanwhile, his lawsuit was not standing still.  Senior U.S. District Judge Robert G. Doumar dismissed his Title IX claim in September 2015, denying his motion for a preliminary injunction, and holding his Equal Protection Claim in reserve while he appealed to the U.S. Court of Appeals for the 4th Circuit, based in Richmond.  In the spring of 2016, the 4th Circuit sent the case back to the district court, issuing an opinion holding that the court should have deferred to the position advanced by the U.S. Departments of Education and Justice, which opined that discrimination because of gender identity is sex discrimination and schools are required under Title IX to treat student consistent with their gender identity.

Judge Doumar then issued a preliminary injunction during the summer of 2016 ordering the School District to let Grimm use the boys’ restrooms, but the School District obtained a stay of that order from the Supreme Court, which subsequently granted the School’s petition to review the 4th Circuit’s “deference” ruling.  The Supreme Court scheduled the case for argument, but then the incoming Trump Administration “withdrew” the position that the Obama Administration had taken, knocking the props out from under the 4th Circuit “deference” ruling, and persuaded the Supreme Court to cancel the argument and send the case back to the 4th Circuit, which in turn sent it back to the district court.  And, by the time it got there, Grimm had graduated from Gloucester County High School.

The School District attempted to get rid of the case at that point, arguing that it was moot.  Grimm begged to differ, arguing that his Title IX and Equal Protection rights had been continuously violated by the School District from the time it adopted its exclusionary restroom policy through the time of his graduation.  In a newly amended complaint, Grimm sought a declaratory judgement as to the violation of his rights under both Title IX and the constitution and an end to the school’s exclusionary policy.

The School District moved to dismiss this new complaint, leading to the May 22 ruling by Judge Allen, to whom the case had been reassigned in the interim. Judge Doumar, who was born in 1930, was appointed to the court by President Reagan and is still serving as a part-time senior district judge.  Judge Allen was appointed to the court by President Obama in 2011.

Judge Allen’s opinion relies heavily on important judicial developments that have occurred since Judge Doumar’s initial dismissal of the Title IX claim back in 2015. The 4th Circuit has yet to issue a ruling on the merits of the question whether federal laws that forbid discrimination because of sex can be construed to apply to gender identity discrimination claims.  Since the Supreme Court has also avoided addressing that issue, it was open to Judge Allen to follow as “persuasive precedents” the lengthening list of rulings from other federal courts, including five different circuit courts of appeals and many district courts, holding that sex discrimination laws should be broadly construed to cover gender identity claims.

These decisions draw their authority from two important Supreme Court decision: Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner Offshore Services (1998). In Price Waterhouse, the Supreme Court accepted as evidence of intentional sex discrimination an accounting firm’s denial of a partnership to a woman who was deemed inadequately feminine by several partners who voted against her.  In Oncale, the Court ruled that Title VII, the federal law banning employment discrimination because of sex, could apply to a claim of hostile environment sexual harassment by a man who worked in an all-male workplace, commenting that even if this scenario was not contemplated by Congress when it passed Title VII in 1964, that statute could be applied to “comparable” situations.

Since the turn of the century, federal appeals courts have used those two cases to find that transgender people can seek relief from discrimination under the Gender-Motivated Violence Act, the Equal Credit Opportunity Act, Title VII of the Civil Rights Act, Title IX of the Education Amendments Act, and the Equal Protection Clause. In addition, district courts have found such protection under the Fair Housing Act.  A consensus based on the gender stereotype theory has emerged, even in circuits that have generally been hostile to sexual minority discrimination claims.  And, most significantly, the 7th Circuit ruled last year in the case of Ashton Whitaker, a transgender boy, that Title IX and the Equal Protection Clause required a school district to allow him to use boys’ restroom and locker room facilities.  There is no material distinction between the Whitaker and Grimm cases.

Furthermore, and closer to home, on March 12 of this year U.S. District Judge George L. Russell, III, ruled in a case from Maryland (also in the 4th Circuit) that a school district had violated Title IX and the Equal Protection Clause by refusing to allow a transgender boy to use the boys’ locker room at his high school.  Judge Allen found Judge Russell’s analysis persuasive, as she did the recent cases from other courts.

Turning to Grimm’s constitutional claim, Judge Allen followed the precedents from other courts that have determined that discrimination against transgender people is subject to “heightened scrutiny” judicial review, similar to that used for sex discrimination cases. Under this standard, the challenged policy is presumed to be unconstitutional and the government bears the burden of showing that it substantially advances an important governmental interest.

The Gloucester School District argued that its interest in protecting the privacy of other students was sufficient to vindicate its policy, but Judge Allen disagreed, finding that “the policy at issue was not substantially related to protecting other students’ privacy rights. There were many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms.”  The school had created three single-user restrooms open to all students, so any student who sought to avoid using a common restroom with Mr. Grimm had only to use one of those.  She also noted that the School Board reacted to the controversy by taking steps “to give all students the option for even greater privacy by installing partitions between urinals and privacy strips for stall doors.”  Thus, any validity to privacy concerns raised when the controversy first arose had been substantially alleviated as a result of these renovations.

Having denied the School District’s motion to dismiss the amended complaint, Judge Allen directed the attorneys to contact the Courtroom Deputy for United States Magistrate Judges within thirty days to schedule a settlement conference. If the parties can’t work out a settlement with a magistrate judge, the district court will issue a final order dictating what the school district must do to be in compliance with Title IX and the Constitution.  And, because Grimm is the prevailing party in this long-running and hotly litigated civil rights case, one suspects that sometime down the road there will be a substantial attorneys’ fee award.

Grimm’s lawyer, Joshua Block of the ACLU LGBTQ Rights Project, indicated that their goal in the case at this point is the declaratory judgment and nominal damages for Grimm, and of course an end to the School Board’s discriminatory policy. Grimm now lives in Berkeley, California, and intends to begin college this fall in the Bay Area, according to the New York Times’ report on the case.

Of course, the School District may seek to appeal Judge Allen’s Order to the 4th Circuit.  Attorney General Jeff Sessions issued a Memorandum last fall formally rejecting the Obama Administration’s position that federal sex discrimination laws forbid gender identity discrimination, so the School District could count on the Justice Department to support an appeal.  And Trump’s rapid pace in filling federal circuit court vacancies may slow or eventually halt the continuing trend of transgender-positive rulings from the other circuit courts, but that is not likely to be the case in the 4th Circuit for some time.  At present that court has an overwhelming majority of Democratic appointees (including six by Obama and four by Clinton on the 15 member court) with only one vacancy for Trump to fill.  The 4th Circuit was out front of the Supreme Court in 2014 in striking down state bans on same-sex marriage, and its 2016 opinion in Gavin Grimm’s case was notably transgender-friendly, so it is unlikely that an appeal by the School District will be successful in the 4th Circuit.  The Supreme Court, of course, may be a different matter.  Time will tell.

Federal Court Rejects Trump Administration Ploy and Orders Trial on Trans Military Ban

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

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people.  Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban.  Karnoski v. Trump,  2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’”  Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes.  However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve.  One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States.  Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny.  Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights.  The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time.  Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law.  Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex.  The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard.  Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report.   Judge Pechman has already signaled in her Order her skepticism as to this.  By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”  Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.”  She also notes that Mattis was given only one day’s notice before the announcement.  “As no other persons have ever been identified by Defendants – despite repeated Court orders to do so – the Court is led to conclude that the Ban was devised by the President, and the President alone.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference.  But Judge Pechman remains skeptical.  (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’  Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’  The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018.  As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims.  On the present record, the Court cannot determine whether the DoD’s deliberate process – including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon – is of the type to which Courts typically should defer.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”  And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”  In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President.  “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples.  “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump.  If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

(Post script):

Federal Appeals Court Rules for Transgender Funeral Director in Title VII Discrimination Suit

Posted on: March 11th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman.  The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.

Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.

This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff.  Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII.  Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.

Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.

The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home.  After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.

“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan.  Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”

Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”

“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.

The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.

Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA.  At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners.  The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.

Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff.  The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes.  Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.

District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home.  In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision.  Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.

The 6th Circuit reversed on both points.  As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her.  The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.

More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.

Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace.  Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.

After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct.  “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims.  “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.  The answer quite obviously is no.  This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”

The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.

And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.”  Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well.  Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much!  “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense.  One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision.  The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees.  Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business.  Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.

Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case.  The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.

However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA.  The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”

Rost suggested two ways this would impose a substantial burden.  First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.”  The court did not accept either of these as “substantial within the meaning of RFRA.”

For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII.  Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim.  “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”

The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business.  The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff.  This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage.  Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all.  But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.

As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest.  Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director.  “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore.  “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform.  But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.”  The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”

“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”

The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections.  Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision.  What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so.  This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination.  (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)

Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex.  The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.”  “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore.  “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.”  It was not just about the uniforms.

The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA.  With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA.  Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.

The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight.  Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home.  The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.

Judge Moore was appointed to the court by President Bill Clinton.  The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama.  Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges.  As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.

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.

 

Two Federal Judges Deal Setbacks to Trump’s Transgender Military Ban

Posted on: December 11th, 2017 by Art Leonard No Comments

Federal district judges on opposite coasts dealt setbacks to President Donald J. Trump’s anti-transgender military policy on December 11.  U.S. District Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., rejected a motion by the Justice Department in Doe v. Trump to stay her preliminary injunction that requires the Defense Department to allow transgender people to apply to join the service beginning January 1, 2018.  And U.S. District Judge Marsha J. Pechman refused to dismiss the complaint in Karnoski v. Trump, a lawsuit challenging the anti-transgender service ban, while granting the plaintiffs’ motion for a preliminary injunction against implementation of the policy.  Also on December 11, U.S. District Judge Jesus G. Bernal in Los Angeles heard arguments in support of a motion for preliminary injunction in Stockman v. Trump, a fourth lawsuit challenging the ban.

Judge Kollar-Kotelly’s decision was predictable, given her October 30 ruling granting the preliminary injunction and a more recent ruling “clarifying,” at the request of the Justice Department, that she really intended to require the Defense Department to allow transgender individuals to begin enlisting on January 1.  The Justice Department incredibly claimed that this January 1 deadline created an emergency situation, but their argument was significantly undercut by reports last week that the Pentagon had, in response to the judge’s earlier Order, put into motion the steps necessary to comply.

In support of its motion for a stay, DOJ presented a “declaration” from Acting Deputy Assistant Secretary of Defense for Military Personnel Policy Lernes J. Hebert, who claimed that implementing the court’s order on January 1 would “impose extraordinary burdens on the Department and the military services” and that “notwithstanding the implementation efforts made to date, the Department still would not be adequately and properly prepared to begin processing transgender applicants for military service by January 1, 2018.”

The judge found this unconvincing, pointing out that DoD has had almost a year and a half to prepare for this eventuality, dating back to former Secretary of Defense Ashton Carter’s June 2016 Directive pointing to a July 1, 2016, implementation date for allowing transgender people to enlist, which was extended for six months by Secretary James Mattis at the end of June 2017.  “Moreover,” she wrote, “the Court issued the preliminary injunction in this case approximately six weeks ago, and since then Defendants have been on notice that they would be required to implement the previously established policy of beginning to accept transgender individuals on January 1, 2018.  In other words, with only a brief hiatus, Defendants have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years.”

In opposition to the motion, the plaintiffs had submitted a declaration by Dr. George Richard Brown, who has trained “approximately 250 medical personnel working in Military Entrance Processing Stations (MEPS) throughout the military” in anticipation of implementing the accessions policy, and a declaration by former Secretary of the Navy Ray Mabus, Jr., who stated that “the Services had already completed almost all of the necessary preparation for lifting the accession ban” as long as a year ago.

As to the so-called emergency nature of this motion, Judge Kollar-Kotelly wrote, “As a final point, the Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics. The Court issued its preliminary injunction requiring Defendants to comply with the January 1, 2018 deadline on October 30, 2017.  Defendants did not file an appeal of that decision until November 21, 2017, and did not file the current motion for a stay of that deadline until December 6, 2017, requesting a decision by noon today, December 11, 2017.  There is also no indication that Defendants have sought any sort of expedited review of their appeal, the first deadlines in which are not until January, 2018.  If complying with the military’s previously established January 1, 2018 deadline to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity.”

However, the judge’s denial of the stay may prove more symbolic than effective in terms of allowing transgender people to actually enlist, since she noted that the policy that will go into effect on January 1 presents significant barriers to enlistment on medical grounds.  The Pentagon is planning to require that transgender applicants show, generally speaking, that for at least 18 months prior to their applications they have been “stable” with regard to their gender identity.  Nobody can enlist, for example, if they have undergone gender confirmation surgery within the past 18 months, since the medical standard will require that they have been “stable” for at least 18 months after the last surgical treatment.  Similarly, anybody first diagnosed as having gender dysphoria within the previous 18 months cannot enlist, since they will have to have certified by a licensed medical provider that they have been “stable without clinically significant distress or impairment” for at least 18 months since their diagnosis.  And those under treatment, for example taking hormone therapy, will have to show they have been stable for at least 18 months since commencing therapy.  In addition, of course, applicants will have to meet all medical requirements applicable to everybody regardless of gender identity, and it is well-known that a substantial percentage of potential enlistees are disqualified on physical/medical grounds.

As to the government’s “extraordinary burden” argument, Judge Kollar-Kotelly noted, “There is no evidence in the record that would suggest that the number of transgender individuals who might seek to accede on January 1, 2018, would be overwhelmingly large.  To the contrary, although the Court understands that there may be some dispute as to the amount of transgender individuals in the general population and in the military, the record thus far suggests that the number is fairly small.”

Plaintiffs in Doe v. Trump are represented by National Center for Lesbian Rights and GLAD.

The plaintiffs in Karnoski v. Trump, pending in the district court in Seattle, are represented by Lambda Legal and Outserve/SLDN.  They alleged four theories for challenging the policy: equal protection, substantive due process (deprivation of liberty), procedural due process, and freedom of speech.  Judge Pechman found that three out of these four theories were sufficiently supported by the complaint to deny the Justice Department’s motion to dismiss the case, although she granted the motion as to the procedural due process claim.  She efficiently disposed of various procedural objections to the lawsuit, finding that all of the plaintiffs have standing to proceed, including the organizational plaintiffs and the State of Washington, whose motion to intervene as a plaintiff had previously been granted, and that the dispute is ripe for judicial resolution because of the imminent implementation of Trump’s policy directives.

As had two district judges before her, Judge Pechman cut and pasted screen captures of the president’s July 26 tweet announcing the policy into her opinion, and used particularly cutting language to reject DOJ’s argument that the president’s policy decision was entitled to the kind of judicial deference usually accorded to military policy decisions. “Defendants rely on Rostker v. Goldberg (1981). In Rostker, the Supreme Court considered whether the Military Selective Service Act (MSSA), which compelled draft registration for men only, was unconstitutional.  Finding that the MSSA was enacted after extensive review of legislative testimony, floor debates, and committee reports, the Supreme Court held that Congress was entitled to deference when, in ‘exercising the congressional authority to raise and support armies and make rules for their governance,’ it does not act ‘unthinkingly’ or ‘reflexively and not for any considered reason.’  In contrast, the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation.  The policy is therefore not entitled to Rostker deference.  Because Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests, it does not survive intermediate scrutiny.”  In a footnote, the judge added, “For the same reasons, the policy is also unlikely to survive rational basis review.”

The court concluded that all the tests for preliminary injunctive relief established by the 9th Circuit Court of Appeals (Washington State is within the 9th Circuit) had easily been satisfied.  Her Order “enjoins Defendants and their officers, agents, servants, employees, and attorneys, and any other person or entity subject to their control or acting directly or indirectly in concert or participation with Defendants from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement.  This Preliminary Injunction shall take effect immediately and shall remain in effect pending resolution of this action on the merits or further order of this Court.”

Thus, Judge Pechman issued the third preliminary injunction against Trump’s anti-transgender policy, after those issued by Judge Kollar-Kotelly on October 30 and U.S. District Judge Marvin J. Garbis in Stone v. Trump on November 21 in the District Court in Maryland. All three preliminary injunctions block the discharge of transgender service members while the case is pending and require the Pentagon to allow transgender people to begin enlisting on January 1.  The injunctions by Judge Garbis and Judge Pechman also block the administration from refusing to fund transition-related health care (including surgery).  In the face of this united front from the three judges, it seems likely that Judge Bernal will eventually issue a similar order, so attention will turn to the Courts of Appeals to which DOJ has appealed the first ruling and presumably will soon appeal the others.

A Second US District Judge Blocks Trump’s Ban on Transgender Military Service

Posted on: November 21st, 2017 by Art Leonard No Comments

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 Memorandum implementing his July 26 tweet announcing a ban on all military service by transgender individuals. Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md.). The November 21 action by District Judge Marvin J. Garbis of the District of Maryland came just three weeks after a federal district judge in the District of Columbia, Colleen Kollar-Kotelly, had issued a preliminary injunction against two directives in Trump’s three-directive memo.  (See Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).  Judge Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals who had standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

In his August 25 Memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on accession of transgender members, scheduled to end on January 1, 2018, be extended indefinitely. His third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with a possible individual exception in cases where procedures were already under way and failure to complete them would endanger the health of the individual.  (Of course, those individuals, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued a memorandum establishing an “interim policy,” announcing that he would meet the President’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit in the U.S. District Court in Maryland on August 8. Three other lawsuits challenging the transgender ban are pending.  One filed on August 9 in the District of Columbia District Court has already resulted in the preliminary injunction issued by Judge Kollar-Kotelly.  The others are pending in the District Courts in Seattle and Los Angeles, where the plaintiffs are also seeking preliminary injunctions.

Judge Garbis leaned heavily on Judge Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate in this case. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Continued Garbis, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Indeed, Garbis concluded that heightened scrutiny was not even necessary to rule for the Plaintiffs on this motion. “The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding rationality test applied to all government policies.

Garbis closely followed the D.C. Court’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that nobody had been harmed yet so nobody had standing to bring the case, and that it was not yet ripe for judicial resolution when Mattis had not yet made his implementation recommendations to the President. The adoption of a policy that violates equal protection is deemed a harm even before it is implemented, and the stigmatic harm of the government officially deeming all transgender people as unfit to serve the country is immediate.  The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, thus undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The D.C. Court had accepted the government’s argument that appropriate adjustments had vitiated any negative effect on the plaintiffs in that case who were seeking transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the strongest statement in his opinion, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement.  The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.  A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal, without prejudice, of their claim that the policy violates 10 U.S.C. sec. 1074(a)(1), a statute the entitles active duty and reserve military members to medical care in military treatment facilities. The plaintiffs claimed that the sex reassignment directive exceeded the President’s authority by attempting to override a statute by “denying necessary medical care to a group of service member he happens to disfavor,” and that doing so through a unilateral White House memorandum rather than a regulation adopted pursuant to the Administrative Procedure Act was unlawful.  Garbis characterized the plaintiffs’ factual allegations in support of this claim as “conclusory” and thus not sufficient to meet the civil pleading requirement.  However, he wrote, “Perhaps Plaintiffs could assert an adequate and plausible statutory claim,” so he dismissed without prejudice, allowing the plaintiffs to seek permission to file an amendment that “adequately asserts such a claim if they can do so.”  This dismissal does not really affect the substance of the relief granted by the preliminary injunction or sought in the ongoing case, because Judge Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery, exactly the part of the Trump memorandum targeted by the statutory claim.

The Justice Department will likely seek to appeal this ruling to the 4th Circuit Court of Appeals, just as it had announced that it would appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit Court of Appeals.  By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles.  Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 Memorandum and disavow the July 26 tweet.

Since the Administration takes the position that Presidential tweets are official policy statements of the President, a disavowal of the tweets would be necessary to render the policy fully withdrawn, one presumes, although this is unexplored territory. Interestingly, Judge Garbis followed Judge Kollar-Kotelly’s example by including a cut and paste version of the Trump tweet sequence in the background section of his opinion, and specifically identified policy announcement by tweet as a departure from normal procedure that contributes to the constitutional analysis.

Judge Garbis, a Senior U.S. District Judge, was appointed by President George H.W. Bush.

ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

Posted on: September 2nd, 2017 by Art Leonard No Comments

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the appeal moot.  Did Grimm still have standing to seek the injunctive relief that he sought? Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether Senior U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board and denied Grimm’s motion for a preliminary injunction. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier in July whether this is so, and the court concluded that more fact-finding was necessary before the issue of its jurisdiction could be decided.  A week later, however, Grimm’s lawyers from the ACLU agreed with the School Board to end the appeal concerning the preliminary injunction, submitting a stipulation to the 4th Circuit to that effect, resulting in a one-sentence order by that court dismissing the appeal.  Grimm v. Gloucester Bounty School Board, 2017 U.S. App. LEXIS 16697 (4th Cir. Aug. 30, 3017).  But they did not agree to end the case, instead filing an amended complaint on August 11, of which more details follow below.

Grimm’s mother originally filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination forbidden under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.  Grimm sought a preliminary injunction so he could resume using the boys’ restrooms at the high school while the case was pending.  The Board moved to dismiss, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution.  Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, while reserving judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal.  While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated Title IX.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Shortly thereafter, the Departments of Education and Justice sent a joint “Dear Colleague” letter to all the nation’s public schools that receive federal funds, more formally stating their position on Title IX coverage of the transgender facilities access issue and other issues relevant to equal educational opportunity for transgender students.  Responding to the Circuit’s remand, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017.  Meanwhile, Donald Trump was elected president, took office in January, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education.  Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 they announced that the Departments of Education and Justice were “withdrawing” the Obama Administration’s “Dear Colleague” letter and issuing a new one that, in effect, took no position on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government.  The Supreme Court reacted to this development by granting the Solicitor General’s subsequent request to cancel the oral argument, vacated the 4th Circuit’s decision, and sent the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4th Circuit directed the district court to quash the preliminary injunction and tentatively scheduled an argument to be held in September.  After Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2.  “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.”  Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit.  He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally.  “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.”  The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.”  The factual record in this case consisted of the sworn allegations that were presented to the district court in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school.  Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.”  They were not sending the case back for a new ruling by the district court on the merits, just for a ruling on the question of mootness after additional fact-finding.  Any determination by Judge Doumar that the case was moot could, of course, be appealed by Grimm.

But litigating over the issue of mootness with respect to the preliminary injunction did not strike the ACLU as the best approach at this point in the litigation, so it secured agreement from the School Board to move the 4th Circuit to dismiss the appeal, and proceeded to file an amended complaint.  The new complaint supplements the original complaint with factual allegations bringing the story up to date, culminating with the following: “As an alumnus with close ties to the community, Gavin will continue to be on school grounds when attending football games, alumni activities, or social events with friends who are still in high school.”  This would support his continuing personal stake in the issue of appropriate restroom access at the school.  The complaint restates 14th Amendment and Title IX as sources of legal authority for the argument that the school board’s policy violates federal law.  The request for relief is reframed to reflect Grimm’s alumni status, seeking a declaration that the policy is illegal, nominal damages (symbolic of the injury done to Grimm by denying him appropriate restroom access), a permanent injunction allowing Grimm to use the same restrooms as “other male alumni,” his reasonable litigation costs and attorneys’ fees, and “such other relief as the Court deems just and proper.”  The school board can be expected to move to dismiss the amended complaint with the argument it made to the court in suggesting that the case was moot, but this time the standing question will be litigated solely with respect to Grimm’s alumni status going forward.

It appears from the docket number stamped on the amended complaint by the court clerk’s office, 4:15-cv-00054-AWA-DEM, that the case is now assigned to District Judge Arenda L. Wright Allen, who was appointed by President Obama in 2011. Judge Doumar, 87, who issued the earlier rulings for the district court, is a senior judge who was appointed by Ronald Reagan in 1981.

While this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. The Kenosha School District filed a petition for certiorari with the Supreme Court on August 25.  So it is distinctly possible, that the action on this issue will move there and this case may well end up being put “on hold” by the court if the Supreme Court agrees to hear the Kenosha appeal.

Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

Posted on: July 27th, 2017 by Art Leonard No Comments

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.