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Transgender Mexican Asylee Seeks Supreme Court Review of 7th Circuit’s Refusal to Consider His Constitutional Challenge to Indiana’s Citizenship Requirement for Legal Name Changes

Posted on: June 6th, 2018 by Art Leonard No Comments

The Supreme Court has received a petition for certiorari seeking review of the 7th Circuit’s March 28 decision in Doe v. Holcomb, 883 F.3d 971, petition for certiorari, No. 17-1637 (filed June 4, 2018), a dispute over the constitutionality of Indiana’s limitation of the right to obtain a legal change of name to U.S. citizens.

The “John Doe” plaintiff is a transgender refugee from Mexico, who was brought to the U.S. as a child by his parents, where they have lived in Indiana. Doe was awarded asylum in the United States, consistent with a developing body of case law recognizing the dangerous situation for transgender people in Mexico.  Identified as female at birth, Doe now lives consistently with his male gender identity, and has obtained many of the necessary documents, but he was advised by the Marion County Clerk’s office that it would be futile for him to file a name-change petition, because Indiana’s name-change law has an inflexible requirement of U.S. citizenship as a prerequisite, not subject to waiver.  Doe has encountered practical difficulties due to the discordance between his obviously-female legal name on identification documents and his male appearance both in person and in photo IDs.  Imagine the difficulty for a transgender man of dealing with a police stop, the presentation of an ID to enter an office building or to board an airplane or to be admitted to a hospital, if an obviously female name appears on the document.  Among other things, every time Doe presents identification, he is being “outed” as transgender, raising serious privacy concerns.

Represented by the Transgender Law Center (Oakland, CA), the Mexican American Legal Defense & Educational Fund (Los Angeles) and Indianapolis attorney Barbara Baird, Doe filed suit in the U.S. District Court in Indianapolis, naming as defendants then-Governor Mike Pence, then-Attorney General Gregory Zoeller, then-Marion County Clerk of Court Myla A. Eldridge, and Executive Director Lilia G. Judson of the Indiana Supreme Court Division of State Court Administration, all in their official capacities. Chief U.S. District Judge Jane Magnus-Stinson granted the defendants’ motion to dismiss (2017 WL 956365 [S.D. Ind., March 13, 2017]), finding that Doe lacked standing to sue these officials, opining that the “injury in fact” that Doe claimed to suffer was not fairly traceable to any conduct by the named defendants and would not likely be redressed by a favorable decision against them.  Of course, Doe could not sue the state directly in federal court because of the 11th Amendment, which insulates states from being sued by their residents in federal court except where the state has waived such immunity.

Doe appealed and a 7th Circuit panel affirmed on March 2, voting 2-1, but on different (and surprising grounds). While agreeing that the suit against the county clerk (Mary Willis having been substituted for her predecessor) should be dismissed on standing, the court opined that 11th Amendment immunity stood in the way of suing the named state officials (by now, new Governor Eric Holcomb and new Attorney General Curtis T. Hill, Jr. as well as Ms. Judson).  The majority of the 7th Circuit panel found that none of the named state officials had the sort of enforcement responsibilities for the name-change statute that would subject them to potential liability in their official capacities to overcome the 11th Amendment immunity they otherwise enjoyed from being sued in federal court.  The 7th Circuit majority asserted that the correct way for Doe to proceed would be to file a name change application in the Marion County state court and, if it is denied by that court on the ground that Doe is not yet a U.S. citizen, either to wait until he can complete the naturalization process (for which he will be eligible to apply four years after his permanent residence status was approved by the government), or to make his constitutional challenge to the citizenship requirement in the state court and, if necessary, appeal it up through the state court system, ultimately seeking U.S. Supreme Court review if the highest state court to consider his appeal rules against him.  (Given the time it would take to go through the state court system, this route would perhaps be less practical than just waiting until he can become a citizen, although reported backlogs in the naturalization process might suggest otherwise. The website reported this January that the waiting time for process new citizenship applications averages nine months, and that the agency has been overwhelmed as the Trump Administration’s crack-down on non-citizens and deportation activity has prompted a flood new citizenship applications from legal residents.)  To avoid the 11th Amendment immunity problem, says the panel majority, he should pursue his remedy in state court.  The majority’s reliance on 11th Amendment immunity was surprising because none of the defendants sought to raise an immunity defense in the district court, according to the cert petition.

The majority’s conclusion drew a strong dissenting opinion from Chief Circuit Judge Diane Wood. “This is an unusual case,” she wrote, “but in the end it is not one that we should bar from adjudication. . .  In my view, the majority’s analysis gives insufficient weight to the significant roles played by the Attorney General, Executive Director, and Clerk in enforcing the name-change statute and preventing Doe from securing official recognition of his identity.”  While agreeing that the governor should be dismissed as a defendant, Wood focused on the attorney general’s role as the state’s chief law enforcement official and the one charged with defending the constitutionality of state statutes, and the administrative responsibility of the other two officials.  “I would give Doe an opportunity to amend his complaint to name other executive-branch officials whose responsibilities include the policing of the name a person uses in order to receive services or to deal with the state.”

The cert petition, which identifies as Counsel of Record Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund, makes a very practical argument about why Doe should be allowed to proceed in federal court on the merits of his constitutional claim. Indiana is the only state that requires citizenship by statute as a prerequisite for a legal change of name, and does not apparently give its courts any ability to waive that requirement in particular cases.  The provision was adopted relatively recently, and is clearly part of the overall hostility toward non-citizens by the current Republican-dominated state government.  That same bias may well be present in the state judiciary, especially given the elected status of judges in the state.  The Petition argues that Doe should not be required to undertake the likely futile, time-consuming and expensive step of litigating this question in the politically-responsive state court system.  Indeed, the availability of a federal forum, made up of judges who have no political accountability to the state electorate, to determine whether the citizenship requirement is constitutional seems the much more appropriate way to go in order to afford Doe the appropriate neutral forum to decide his constitutional claim.  (Ironically, this principal was at the heart of the Supreme Court’s ruling in Masterpiece Cakeshop, which was announced on the day this Petition was filed with the Supreme Court!)

The Petition’s argument echoes concerns raised by Judge Wood in her dissent. “Consider the consequences if any state function entrusted to the state court system were placed beyond the power of the federal courts to address (an outcome, I note, that would be incompatible with Mitchum v. Foster, 407 U.S. 225 (1972), which upheld the power of the federal courts to issue civil rights injunctions against state-court proceedings).  A state hypothetically could refuse to allow an African-American person to change his or her surname on an identification card to that of a Caucasian spouse, in flagrant violation of Loving v. Virginia, 388 U.S. 1 (1967), or it could pass a statute refusing to allow a single surname for a same-sex couple, in disregard of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).  The expedient of placing final authority for name-changes in the state court system cannot operate to avoid accountability for potential violations of the federal constitution by other state officials.  Nor can it have the effect of negating the right of any person to bring an action under 42 U.S.C. sec. 1983, which lies within the subject matter jurisdiction of the federal courts, see 28 U.S.C. secs. 1331, 1343(a).”

Judge Wood also noted that many functions are confided by the state to its court system, and “when there is a problem in the system, those aggrieved by that problem sue the state official best suited to the situation.” In this case, for example, Wood suggests that Doe could have sued the Commissioner of the Bureau of Motor Vehicles in order to change his name on his driver’s license.  “It is likely that the Commissioner would have defended his action in such a lawsuit on the basis of the state statute, but Doe’s response to such a defense would have rested on his constitutional rights,” she wrote.  But suing each individual department head for name-change relief would not be “a particularly efficient system,” wrote Wood.  While noting the majority’s suggestion that Doe should initiate his case in the state courts, Wood observed, “What the majority has not explained to my satisfaction, however, is why the same suit cannot be brought in the form and forum Doe has chosen – that is, in a federal court, when no conflicting state-court proceeding or judgment exists.”

The Petition suggests that this case would provide a suitable vehicle for the Supreme Court to clarify the right of individuals to access a federal forum in order to assert their constitutional rights in the face of a state law that, on its face, discriminates in a way that clearly implicates the 14th Amendment, which explicitly guarantees equal protection of the laws to everybody present in the United States, not just to citizens.   And, in other contexts, the federal courts have sharply questioned state laws that require citizenship as a prerequisite for various rights and benefits.  One is hard put to think of any significant state policy reason for absolutely restricting legal name changes based on citizenship.  If there might be some reason in a particular case, state judges could be charged with fact-finding and discretion to deny a particular name change application, which discretion they already possess if they find that a change is requested to avoid accountability for crimes or debts or to perpetrate a fraud.

However, one cannot be optimistic that the Court will grant this Petition, for the simple reason that over the past few decades the Court has sharply reduced the number of cases it is willing to hear each term, preferring to focus on disputes among the circuit courts about the interpretation of federal statutes or constitutional questions that have national import. Since Indiana is the only state imposing such a citizenship requirement for a name change, at present a decision on this case would not seem to meet that description.  But perhaps the Court will see the 7th Circuit’s approach to federal court jurisdiction in this case to present an issue of broader import affecting the entire federal court system and the ability of legal residents to access the federal courts to vindicate their federal rights, the kind of issue that is normally addressed in several cases each Term by the Court.

The state of Indiana’s response, if any, to this Petition is due at the Court by July 5. A decision on whether to grant the Petition would not be likely until shortly before the Court reconvenes for its next term late in September.

LGBT Legal Organizations Call for Decriminalization of Sex Work as Federal Government Initiates Prosecution of’s Owner and Employees

Posted on: August 26th, 2015 by Art Leonard No Comments

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at’s offices on West 14th Street in Manhattan to conduct their raid.  They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website,, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants.  Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.