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Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Posted on: September 27th, 2020 by Art Leonard No Comments

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993.  Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.”  Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include.  While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation.  Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination.  Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute.  To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex.  Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops.  Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent.  Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003).  Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law.  Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection.  Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service.  Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v.  Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1st Amendment.  The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS.  Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS.  He argued that the Court was enabling viewpoint discrimination by the public law school.  Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act.  In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII.  In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis.  She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states.  (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.)  As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases.  Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling.  The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008.  Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth.  Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions.  The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing.  They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid.  There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14th Amendment as construed by the Supreme Court in Obergefell v. Hodges.  In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple.  Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process.  Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1st Amendment.  In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964.  The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh.  In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion.  The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers.  This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project.  Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years.  Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress.  Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party.  President Trump announced his nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals on September 26.  Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate.  Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them.  Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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