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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.


Maine High Court Says Transgender Girl Can Use Public School Restroom of her Choice

Posted on: January 30th, 2014 by Art Leonard No Comments

Maine’s highest court ruled on January 30 that a transgender girl attending Maine public schools is entitled to use the girl’s restroom. Voting 6-1, the court reversed a contrary ruling by the Penobscott County Superior Court. The dissenting judge agreed that the right of transgender students to use the restroom of their choice should be protected, but argued that the legislature needed to amend the state’s public restroom statute to reach that result. Justice Warren M. Silver wrote the opinion for the court.

The court allowed the plaintiffs to use pseudonyms to protect confidentiality, so the plaintiffs were identified as John and Jane Doe, parents of Susan Doe. Susan, born male, began to identify as female as early as age two. She began attending school at the Asa Adams School in Orono, and generally wore gender-neutral clothing until third grade, when, as the court describes it, “her identity as a girl became manifest” and, for the first time, the school’s principal became aware that Doe was transgender. Students in the early grades used single stall restrooms, and Susan was allowed to use the single-stall girl’s room without incident. In third grade, teachers and other students referred to Susan as she and used her preferred name, and by fourth grade, she was dressing and appearing exclusively as a girl.

During Susan’s fourth-grade year, the school implemented a formal plan to “address Susan’s gender identity issues and her upcoming transition to fifth grade, where students used communal bathrooms separated by sex.” By this time, Susan had received a formal diagnosis of gender dysphoria. “School officials recognized that it was important to Susan’s psychological health that she live socially as a female,” wrote Justice Silver. And school officials did not interpret the state’s restroom facilities law as prohibiting somebody in Susan’s position from using the girls’ bathroom. A team was convened, including Susan’s mother, her teachers, a guidance counselor and the school district’s director of special services to deal with how the school would treat Susan. They agreed she would be treated as a girl and could use the communal girls’ restroom. They agreed that requiring her to use the boys’ room was not acceptable. Indeed, the principal testified in this lawsuit that it would not have been safe for her to do so. There was a unisex staff restroom on the school premises, which the team saw as available in case Susan’s use of the girl’s restroom became “an issue.”

In the fifth grade, it became “an issue,” because the grandfather of a male student, who was the student’s guardian, instructed him that if Susan was free to use the girls’ restroom, than so was he. This student followed Susan into the girls’ restroom on two occasions, and “the controversy generated significant media coverage.” Schools tend to react to controversy by wimping out, which is what the school did in this case, directing Susan that she had to use the single-stall, unisex staff restroom. Susan was the only student directed to use that room.

The special team met again to discuss Susan’s transition to middle school, and school officials insisted that Susan would not be permitted to use the girl’s restroom in middle school. Her parents objected to this, and at the end of her sixth grade year, they moved to another part of the state to transfer her to another school.

But even before the move, they filed a complaint with the Maine Human Rights Commission against the school district, represented by Gay & Lesbian Advocates & Defenders, the Boston-based New England LGBT rights law firm. Maine’s Human Rights Law specifically bans discrimination in public accommodations because of sexual orientation, and the term sexual orientation as used in the statute is defined to include gender identity. For the first time, the school district argued in response that the state statute requiring schools to provide separate restrooms for male and female students supported its position, and the Superior Court granted summary judgment to the school district on that basis.

Rejecting that interpretation, Justice Silver wrote that the “sanitary facilities” provision was intended “to establish cleanliness and maintenance requirements for school bathrooms, as well as requirements for the physical layout of toilet facilities. It does not purport to establish guidelines for the use of school bathrooms. Nor does it address how schools should monitor which students use which bathroom, and it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities.” On the other hand, the human rights act was intended to “prohibit discrimination against transgender students in schools.” Justice Silver rejected the school district’s argument that the sanitary facilities provision “preemptively created an exception” to the human rights law requirements. Instead, he insisted that “a consistent reading of the two statutes avoids conflicting, illogical results and comports with the legislative intent by giving effect to both provisions.”

In this case, said the court, school administrators had accepted at an early stage that Susan was a girl and would be treated as a girl, and the school had itself determined that she could use the girls’ room. The later decision to limit her to the staff room was not due to any change in her status, but “on others’ complaints about the school’s well-considered decision,” and this was discriminatory. The court said that the school’s discrimination could not be “excused” by “compliance” with the sanitary facilities law.

The court pointed out that it was not holding that “any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are presented in this case.” Thus, the court rejected the dissent’s argument that its interpretation of the statutes would require schools “to permit students casual access to any bathroom of their choice.”

Dissenting Justice Andrew M. Mead insisted that he supported the right of a transgender student to be free from discrimination at school because of gender identity, but he could not agree with the majority’s interpretation of the sanitary facilities statute. “The statutory directive to segregate bathrooms in schools by sex, and providing for separate entrances and exits for those bathrooms, clearly anticipates that the use of a bathroom would be restricted to the sex for which it has been designated,” he insisted, disagreeing with the court’s statement that the schools had the prerogative to create their own policies concerning how the bathrooms were to be used. He found the “plain language” of the two statutes to be in conflict, and said that the court should have abstained from resolving the conflict, deferring the issue to the legislature.

In a concurring opinion, Chief Justice Leigh I. Saufley agreed with the court’s result, but strongly supported Justice Mead’s call for the legislature to address the issue. “Put simply,” wrote Saufley, “it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa. I agree with the dissent that it is highly unlikely that the Legislature actually intended that result. Accordingly, on this matter of public policy, it would benefit the public for the Legislature to act quickly to address the concern raised by the dissent in this matter.”

Jennifer Levi, a law professor who works with GLAD on gender identity cases, argued the appeal on behalf of the Does.