Tag Archive for "transsexual" - Art Leonard Observations

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Federal Court Rules “Catholic Hospital” Owned by University of Maryland Medical Systems Can’t Refuse Gender-Affirming Surgery for Transgender Patients

Posted on: January 9th, 2023 by Art Leonard No Comments

Consolidation in the health care industry has resulted in some odd situations, as shown by a federal court ruling on January 6 that a “Catholic Hospital” that appears to be owned by a state university system must comply with the anti-discrimination requirements of the Affordable Care Act (ACA), which the court concluded requires the hospital to perform hysterectomies for transgender men seeking the operation for purposes of gender transition, because it performs hysterectomies for cisgender women as prescribed treatment for their medical conditions. Hammons v. University of Maryland Medical System Corporation, 2023 WL 121741, 2023 U.S. Dist. LEXIS 2896 (D. Md., Jan. 6, 2023).

Jesse Hammons, identified as female at birth, was diagnosed with gender dysphoria for which his doctor prescribed a hysterectomy (removal of the uterus) as part of his gender transition. He was scheduled for the procedure to take place at University of Maryland St. Joseph Medical Center, where his doctor scheduled the operation for January 6, 2020. When his doctor conferred with St. Joseph’s chief medical officer about the impending surgery a few weeks ahead of the scheduled date, he was told, “No, we cannot do transgender surgery at St. Joseph.” The hospital cancelled the procedure.

The contract in which University of Maryland Medical Systems purchased St. Joseph Hospital from a Catholic organization in 2012 provides that UMMS must operate St. Joseph “consistent with Catholic values” as set forth in the Ethical and Religious Directives for Catholic Health Services (ERD) promulgated by the U.S. Conference of Catholic Bishops. The Board of St. Joseph formally adopted the ERD as part of its operational policies. Also, UMMS made an agreement with the Archbishop of Baltimore that required St. Joseph Medical Center to comply with the ERD. The ERD categorically prohibits the performance of gender transition treatment at St. Joseph.

While University of Maryland is a state institution subject to constitutional non-discrimination requirements, UMMS argues that it is separately incorporated as a health care institution and is not part of the University of Maryland. However, it is a recipient of federal money through the Medicare and Medicaid programs, so it is also subject to the non-discrimination requirements under Section 1557 of the Affordable Care Act, which imposes a ban on discrimination on grounds prohibited by a list of federal laws, including Title IX of the Education Amendments of 1972, which forbids sex discrimination. Maryland is within the jurisdiction of the federal 4^th Circuit courts, which have ruled that Title IX forbids discrimination because of gender identity, consistent with the U.S. Supreme Court’s 2020 Bostock decision.

Mr. Hammons eventually got his hysterectomy performed at another hospital many months later, but decided to sue the University of Maryland, its Health System, and St. Joseph’s for violation of the First and Fourteenth Amendments and unlawful discrimination under the Affordable Care Act, seeking damages for his economic and emotional injuries. Hammons is represented by the ACLU and cooperating attorneys from the firm of Patterson Belknap.

The defendants moved to dismiss the constitutional claims, arguing that as state entities, they were immune from suit in federal court. Alternatively, the claimed that if they were regarded as private entities, they enjoyed ecclesiastical immunity as well as protection under the Religious Freedom Restoration Act.

The Supreme Court has embraced the view that the concept of “sovereign immunity” prohibits the states from being sued on federal claims in federal courts unless they have agreed to “waive” their immunity. Senior U.S. District Judge Deborah Chasanow concluded that this doctrine required her to dismiss the constitutional claims against UM, UMMS and St. Joseph’s. She appears to have considered them to be state actors.

On the other hand, as she found in her January 6 ruling, under the Affordable Care Act, a condition of a health care provider receiving federal money is their agreement to waive any sovereign immunity claim they might have as to enforcement of the ACA against them in federal court.

This set up interesting paradoxes in this case. By contract, UMMS is required to operate St. Joseph according to the ERD, which bans the performance of any procedure that terminates reproductive capacity unless it is required for medical purposes. St. Joseph argued that UMMS, not St. Joseph, was the recipient of federal funding, so St. Joseph should not be subject to the ACA requirement, but the court found that as a wholly-owned unit of UMMS, St. Joseph was a part of the federal funding recipient entity. Only fair, since St. Joseph, although operating on “Catholic principles,” was found to enjoy sovereign immunity from being sued in federal court on the constitutional claims because the court considered it to be part of the University of Maryland — which it claims it is not.

St. Joseph also argued that it had a valid defense under the Religious Freedom Restoration Act (RFRA), since being required to perform the procedure for Mr. Hammons would substantially burden its free exercise of religion. But wait, can an entity that has been found by the court to be a state actor with sovereign immunity against constitutional claims make a free exercise of religion claim? Which raises the further question whether would violate the Establishment Clause of the First Amendment for a state university to agree to operate one of its wholly owned medical centers based on religious principles. Hammons raised this issue in his complaint, but the judge avoided it by focusing on court decisions limiting the application of RFRA to cases brought by the government.

Although the Supreme Court hasn’t spoken to the issue, most (but not all) federal courts faced with the question have determined that RFRA applies only when the federal government is the plaintiff seeking to enforce a federal statute that burdens free exercise of religion by the defendant. In this case, the court has found (perhaps mistakenly?) that a unit of the state government (University of Maryland St. Joseph Medical Center) is the defendant. The plaintiff, Mr. Hammons, is a private citizen. Although the 4^th Circuit Court of Appeals hasn’t spoken to the issue, several trial courts within the district have sided with those courts who find RFRA inapplicable in litigation brought by a private citizen to enforce a claim under a federal statute. And, UMMS’s argument that it and St. Joseph are private, non-governmental actors, would make this a lawsuit between private parties with no government involvement. Judge Chasanow concluded that St. Joseph could not raise a RFRA defense, because it was not being sued by the federal government. (One might just as well say that an entity wholly owned and operated by a government agency may not raise a RFRA defense, because both the federal and the state governments are prohibited by the 1^st Amendment from “practicing” a religion under the Establishment Clause, but this would be irrelevant if one accepts UMMS’s argument contention that it is not part of the public University whose name it shares.)

Getting back to the easier issue in the case, Judge Chasanow had no trouble determining that refusing a hysterectomy to Mr. Hammons was discrimination in violation of the ACA. The 4^th Circuit ruled in 2020, after the Supreme Court’s Bostock decision, that sex discrimination prohibited by Title IX includes discrimination because of transgender status. Because the ACA forbids health care providers from discriminating on grounds prohibited by Title IX, St. Joseph may not discriminate because of transgender status to deny Hammons his hysterectomy unless it otherwise enjoys a religious exemption, which it was claiming as a defense.

St. Joseph tried to argue that it was not singling out transgender people, but rather applying a general principle that it would not perform operations to terminate reproductive capacity except for medical reasons. But it is now past the day when defendants can credibly argue that gender dysphoria is not a medical reason to perform a hysterectomy. Numerous courts have now rejected the claim that insurance policy provisions excluding coverage for “cosmetic procedures” can be used to block individuals from getting coverage for hysterectomies that are performed for the purpose of gender transition, and numerous federal courts have concluded, in the context of lawsuits by transgender prisoners seeking health care, that gender dysphoria is a serious medical condition.

The bottom line, of course, was that this scheduled procedure was cancelled explicitly because the operation was for the purpose of gender transition, so it could not logically be treated as other than discrimination due to Hammons’ transgender status, bringing it within the scope of the sex discrimination ban, assuming that Section 1557 applies to St. Joseph. (This is another point of significant contention, because Title IX is the source of the ACA non-discrimination requirement under Section 1557, and Title IX has a statutory exemption for religious educational institutions. Some have argued that this exemption should carry over to the ACA as well and cover religious health care institutions, a point of contention between the Trump Administration and the Biden Administration with dueling regulatory language.)

Senior Judge Chasanow was appointed by President Bill Clinton.

9th Circuit Panel Orders Gender Confirmation Surgery for Transgender Inmate in Idaho

Posted on: August 28th, 2019 by Art Leonard No Comments

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9^th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8^th Amendment rights of Adree Edmo, a transgender inmate, when it denied her gender confirmation surgery. The court’s opinion, issued collectively by the three judges as “per curiam,” provides such an extensive discussion of the medical and legal issues that it could serve as a textbook for other courts.

The ruling is a particularly big deal because it is the first such wide-ranging appellate ruling in the nation’s largest circuit by population, as the 9^th Circuit includes California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana. Other circuit courts are divided over whether transgender inmates may have a right to complete their transition surgically while incarcerated.

The three judges on the panel, Circuit Judges M. Margaret McKeown and Ronald M. Gould, and U.S. District Judge Robert S. Lasnik of the Western District of Washington, were all appointed to the court in the late 1990s by President Bill Clinton.

The court’s ruling affirmed a May 2019 order by U.S. District Judge B. Lynn Winmill, also a Clinton appointee, who issued the ruling after an extensive trial process with several expert witnesses and numerous amicus briefs.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since age 5 or 6, according to the hearing record. Edmo pled guilty in 2012 to a charge of sexual abuse of a 15-year-old boy at a house party. At that time, Edmo was 21. It was about that time that she resolved an internal struggle about gender identity and began living as a woman. By the time of the trial court’s evidentiary hearing in this case, Edmo was 30, and due to be released from prison in 2021.

Edmo first learned the term “gender dysphoria” and what was involved in gender transition around the time of her incarceration. Shortly after coming into the custody of the Idaho Department of Corrections, she was diagnosed with “gender identity disorder,” the term that was used in the prior edition of the Diagnostic and Statistical Manual (DSM), the “Bible” for the psychiatric profession. The latest edition of DSM changes the terminology to “gender dysphoria,” as being a more accurate characterization in the consensus view of the profession. The diagnosing doctor was Dr. Scott Eliason, employed by Corizon, Inc., the medical contractor for the Idaho prison system. A psychologist employed by Corizon, Dr. Claudia Lake, confirmed the diagnosis.

Edmo has changed her legal name and obtained a new birth certificate designating her as “female” to affirm her gender identity. She has consistently tried to present as female throughout her incarceration, even though this has resulted in disciplinary measures as she continues to be housed in a male prison. There is no dispute among the parties to this case, which include Corizon and the Idaho Corrections Department, that Edmo suffers from gender dysphoria, which causes her to feel “depressed,” “disgusting,” “tormented” and “hopeless,” and this has moved her twice to attempt self-castration.

Although hormone therapy has helped to ameliorate the effects of her gender dysphoria, it has not completely alleviated the condition, and much of her distress focuses on her male genitalia, the removal of which is her dedicated goal, as reflected in her castration attempts. The expert testimony indicated that removal of the male genitalia would make it possible to reduce the level of her hormone therapy, as her body would no longer be producing the male hormone testosterone, and reduced hormone therapy would reduce side effects and be beneficial to her long-term health.

The main cause of dispute is that the Corizon doctors, under direction of the Idaho Corrections Department, have imposed standards going beyond those specified by the World Professional Association for Transgender Health (WPATH) for determining when an individual with gender dysphoria is eligible for surgery. The state’s case here relies mainly on Dr. Eliason’s testimony and the standards he sought to impose. Judge Winmill concluded that those standards failed in certain respects to conform to the medical consensus as represented by the WPATH standards and that, as to one of Eliason’s standards, his diagnosis fails to give adequate weight to Edmo’s self-castration attempts.

Experts testifying at the district court hearing included two doctors extremely experienced with treating gender dysphoria, both of whom are active as WPATH members, who offered testimony that convinced Winmill that gender confirmation surgery is necessary for Edmo. Winmill issued an injunction after the hearing ordering the state to provide the surgical procedure for Edmo, but the injunction was stayed while the state appealed to the 9^th Circuit on an expedited schedule.

The appellate panel rejected all of the state’s objections to Judge Winmill’s ruling. Under the Supreme Court’s 8^th Amendment jurisprudence, a prison system will be found to violate the 8^th Amendment if it displays deliberate indifference to an inmate’s serious medical condition by failing to provide necessary treatment. A large amount of judgment based on the facts of the individual case goes into determining whether the prison’s failure to provide a particular procedure to a particular inmate violates the Constitution, and some courts have upheld refusal to provide surgery when medical experts disagree about the appropriate treatment for a prisoner’s particular medical condition, finding that a disagreement among experts bars the conclusion that the prison is being deliberately indifferent to the inmate’s medical needs. The state, citing its own experts, pushed for this conclusion, but the court identified the state’s experts as underqualified and their views as “outliers” from the professional consensus.

In backing up Judge Winmill’s conclusion, the 9^th Circuit panel made clear that they were ruling based on the facts of this individual case, and not endorsing a general rule that transgender inmates are always entitled to surgery. They found that the evidence shows that not all people who identify as transgender suffer from gender dysphoria, and that the degree of intensity of gender dysphoria can range from mild to severe. Many transgender people do not desire surgery even though they have a gender dysphoria diagnosis, and sometimes other medical conditions cut against performing the surgery for health and safety reasons.

A major point of contention in this case is the specification in the WPATH standards that surgery should not be performed until the individual has experienced living consistent with their gender identity for at least a year. Dr. Eliason’s interpretation of this requirement focused on living in a non-institutional setting for at least a year, considering the prison setting as “artificial” and not like the setting the inmate would encounter upon release from prison. According to this view, the only inmates entitled to surgery would be those who had lived consistent with their gender identity for at least a year before they were incarcerated. This would categorically rule out surgery for those who were first diagnosed with gender dysphoria after incarceration, such as Edmo, even though identified as female for many years before the crime for which she pled guilty.

The experts who testified on her behalf persuasively argued that it was possible for a transgender inmate to fulfill that requirement in prison, and pointed out that the WPATH standards state that the experiential year can take place while incarcerated. Also, the court noted that Edmo’s persistent attempts to present as female, even in the face of hostility from corrections personnel, since 2012 would more than fulfill this requirement, since there was medical documentation that she has been presented as female since 2012.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with a ruling earlier this year by the U.S. Court of Appeals for the 5^th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8^th Amendment standards. The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1^st Circuit, which held that the Massachusetts prison system did not have to provide surgery for Michelle Kosilek, a transgender inmate who had been sentenced to life without parole upon conviction of murdering her wife while presenting as male. Kosilek went through years of litigation just to get hormone therapy, before then litigating for years for surgery. The 1^st Circuit accepted the state’s testimony that hormone therapy was sufficient in her case and that in light of the nature of her offense, there would be enormous security problems in the prison system if she were to have surgery and then be transferred to a female prison.

The 4^th Circuit has also ruled that a categorical rule against providing surgery for transgender inmates is unconstitutional, but that case did not involve an actual order that a prison system provide the surgery to a particular inmate. This new 9^th Circuit ruling sharpens the split with the 5^th and 1^st Circuits, raising the odds that a petition to the Supreme Court might be granted. So far, the only Supreme Court ruling on the merits in a transgender case dates back several decades, when the Court ruled in a case involving a transgender inmate who was severely assaulted in prison that prison officials might be held to violate the 8^th Amendment by failing to protect transgender inmates from serious injury while incarcerated.

In the course of its ruling, the court determined that Corizon, the health care contractor for the Idaho prisons, was not liable under the 8^th Amendment. Liability was focused on the Idaho Corrections Department itself and Dr. Eliason.

The court emphasized the urgency of providing surgery to Edmo, clearly signaling that it would not be receptive to requests for delay pending further appeal by the state. As a practical matter, if the state cannot obtain an emergency stay, the surgery will go forward unless Idaho decides to do what California did in an earlier case where the 9^th Circuit had refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery! Anticipating that this kind of ruling might come from the 9^th Circuit in that earlier case, California revised its rules to drop its categorical ban on providing gender confirmation surgery to inmates, and has already provided the procedure to one inmate, the first known instance in which a state has actually provided the surgery.

Edmo is represented by a team of attorneys from California and Idaho law firms as well as the National Center for Lesbian Rights. Attorneys from a wide variety of civil rights organizations represented the various amicus parties. The struggle to obtain this decision and opinion was a very large team effort, resulting in an array of briefs that can be usefully deployed in future litigation in other circuits.

Federal Court Rules for “Unique” Family in Fair Housing Act Case

Posted on: April 12th, 2017 by Art Leonard No Comments

A federal district judge in Colorado granted summary judgment under the Federal Fair Housing Act (FHA) on April 5 to a couple in a “unique relationship” who were turned down by a landlord who had two residential properties available for rent that would have met the needs of the couple and their family. Judge Raymond P. Moore found that in turning down two woman (one of whom is transgender) who are married to each other and their two children as tenants, the landlord had discriminated against them because of their sex, as well as their familial status, both of which are forbidden grounds of discrimination under the federal law.

The court also granted judgment to the plaintiffs under Colorado’s Anti-Discrimination Act, which explicitly bans discrimination because of sexual orientation or transgender status as well as familial status.

The landlord, Deepika Avanti, owns three rental properties close to each other in Gold Hill, Colorado. Two are single family houses, and the third is a building subdivided into two separate living spaces, referred to as “townhouses.” As of April 24, 2015, one of the townhouses was rented to a heterosexual couple, Matthew and Chiara, and the other was being advertised for rent on Craigslist.

The plaintiffs are Rachel Smith, a transgender woman, and Tonya Smith. They had been married for five years and were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market. They responded to the Craigslist advertisement by emailing Avanti. “In the email, among other things, Tonya discussed her family, including mentioning that Rachel is transgender,” wrote Judge Moore. Avanti responded to the email, mentioning that both the townhouse and one of the single family houses, which had three bedrooms, were available for rent. She also asked Tonya to send photos of her family. Replying by email, Tonya agreed to meet Avanti that evening and attached a photo of the Smith family.

Tonya and Rachel and their children met with Avanti that evening and got to view the townhouse and the single-family house that were available for rent. They also got to meet Matthew and Chiara, the tenants of the other townhouse. After she returned to her home, Avanti emailed Tonya Smith twice that night. In the first email, she told Tonya that they were “not welcome to rent the Townhouse because of Matt and Chiara’s concerns regarding their children and ‘noise.’” In the second email, Avanti said she had talked to her husband and “they have ‘kept a low profile’ and ‘want to continue it’ that way,” so they would not rent either residence to the Smiths.

The next morning, Tonya emailed Avanti, asking what she meant by “low profile.” Avanti replied “that the Smith’s ‘unique relationship and ‘uniqueness’ would become the town focus and would jeopardize [Avanti’s] low profile in the community.”

It took the Smiths months to find a suitable place to rent. Because they had to vacate their existing residence, they moved in with Rachel’s mother for a week and had to shed possessions to fit into a small space. The new apartment they found did not meet their needs as well as Avanti’s property would have done, due to the location. Their new apartment placed them in a less desirable school district for the children and required a longer daily commute to her job for Rachel, although she subsequently switched to a job closer to their new apartment.

They sued in federal court, asserting claims under the Fair Housing Act and the Colorado Anti-Discrimination Act. The basis for the federal court having jurisdiction to hear the case was the federal statutory claim, which was divided into a sex discrimination claim and a familial status claim.

The more significant part of the ruling for purposes of LGBT law is the federal sex discrimination claim. Federal discrimination statutes do not at present expressly forbid sexual orientation or gender identity discrimination, but courts are increasingly willing to apply bans on sex discrimination to claims brought by GLBT plaintiffs. Although the Department of Housing during the Obama Administration took the position that the FHA should be construed to apply to sexual orientation and gender identity discrimination, the Trump Administration has not announced a position on this. Judge Moore’s opinion thus may be breaking new ground by granting summary judgment in favor of the Smiths on their sex discrimination claim.

Because Colorado is within the 10^th Circuit, Judge Moore had to follow 10^th Circuit precedent in determining whether the Smiths could sue for sex discrimination under the Fair Housing Act. The Smiths had argued that discrimination based on “sex stereotypes” is “discrimination based on sex” under the FHA. Moore pointed out that the 10^th Circuit has followed court rulings under Title VII of the Civil Rights Act when interpreting the FHA discrimination ban, and that the 10^th Circuit has an employment discrimination ruling on a claim by a transgender plaintiff, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007). In that case, the court ruled that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” and that “Title VII protections” do not extend to “discrimination based on a person’s sexual orientation.” However, the Etsitty opinion did recognize the possibility that a gay or transgender plaintiff might claim sex discrimination because of gender stereotyping, relying on the Supreme Court’s 1989 Title VII ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, where the court held that discriminating against a woman for her failure to conform to the employer’s stereotyped views of how women should act and present themselves in a business setting could violate the statute.

Judge Moore noted that in the Etsitty opinion the 10^th Circuit had “cited with approval” to Smith v. City of Salem, 378 F.3d 566 (6^th Circuit 2004), a decision upholding a Title VII claim by a transgender woman who was being pressured to quit by the City’s Fire Department after confiding in a supervisor that she was transitioning. The court held that the fact that the plaintiff is a “transsexual” was “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” In a 2014 decision, McBride v. Peak Wellness Center, 688 F.3d 698, the 10^th Circuit has, according to Judge Moore, “implicitly recognized that claims based on failure to conform to stereotypical gender norms may be viable.”

This was enough for Moore. “In this case,” he wrote, “the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is discrimination on the basis of sex under the FHA. The Court agrees,” he continued, finding that “such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

Moore also stated agreement with the Smiths’ argument that “discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words,” he explained, “that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination because of sex.” So long as the argument was phrased in terms of stereotyping, Moore believed that he could rule on the claim under the FHA. However, he cautioned, “To the extent the Smiths argue something more – that the FHA has been violated based on sex stereotyping as they have been discriminated against solely because of Rachel’s status as transgender, and that the Smiths were discriminated against because of their sexual orientation or identity – the Court declines to do so.” Thus, the court did not hold, as such, that discrimination because sexual orientation or gender violate the FHA’s ban on sex discrimination, but embraced such a broad view of sex stereotyping that the opinion appears to have much the same effect.

As to the motion for summary judgment, Moore concluded that the “undisputed material facts” show that Avanti violated the FHA, as her reference to the Smiths’ “unique relationship” and their family’s “uniqueness” showed reliance on stereotypes “of to or with whom a woman (or a man) should be attracted, should marry, or should have a family.”

As to the “familial status” discrimination claim, there is clear precedent that it violates the FHA for a landlord to have an “adults only” policy or to discriminate against prospective tenants because they have children, so that was a clear winner. Judge Moore also found it relatively simple to rule in the Smiths’ favor on their state law claims, since Colorado explicitly forbids housing discrimination because of sexual orientation (which is defined to include “transgender status”) as well as familial status. The next stage of the lawsuit will be to determine the damages or relief that the court might order.

The Smiths are represented by Karen Lee Loewy and Omar Francisco Gonzalez-Pagan, from Lambda Legal’s New York office, and cooperating attorneys from Holland & Hart LLP’s Denver office: Matthew Paul Castelli and Benjamin Nichols Simler.

4th Circuit Revives Transgender Teen’s Title IX Claim Against Virginia School Board

Posted on: April 19th, 2016 by Art Leonard No Comments

A three-judge panel of the Richmond-based U.S. 4^th Circuit Court of Appeals voted 2-1 on April 19 that U.S. District Judge Robert G. Doumar erred by not deferring to the U.S. Department of Education’s interpretation of its regulations to require schools to let transgender students use restrooms consistent with their gender identity. Judge Doumar had dismissed a claim by G.G., a teenage transgender boy attending high school in Gloucester County, Virginia, that the school violated his statutory right under Title IX of the Education Amendments Act by adopting a rule that he could use only restrooms designated for girls or unisex single-user restrooms. The court referred to the plaintiff by his initials throughout the opinion to guard his privacy, but the ACLU’s press releases about the case identify him as Gavin Grimm. G.G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (April 19, 2016).

The high school had accommodated G.G. when, at the beginning of his sophomore year in August 2014, he informed school officials that he was transitioning, had gotten a legal name change, and would be expressing his male gender identity, by letting him use the boys’ restroom. After several weeks without serious incident, some parents alerted to the situation by their children objected and pushed the school board to adopt its resolution after two public meetings in which indignant parents threatened the board members with political retribution if they did not adopt the restrictive policy. G.G., now 16, has not undergone reassignment surgery, which is not available to minors under the prevailing medical standards for treating gender dysphoria, but has transitioned in all other respects and identifies fully as male.

The 4^th Circuit is the first federal appeals court to rule that the Education Department’s interpretation of Title IX, as expressed in an opinion letter by the Department’s Office of Civil Rights on January 7, 2015, in response to this controversy, should be followed by the federal courts. Since North Carolina is also within the 4^th Circuit, this ruling, as it now stands, suggests that the “bathroom” provisions of the notorious H.B. 2, at least as they apply to public educational institutions, violate federal law, as the ACLU and Lambda Legal have argued in a lawsuit challenging that statute pending in the U.S. District Court in North Carolina.

Writing for the majority of the panel, Circuit Judge Henry F. Floyd observed that the court’s role in a case involving an administrative agency’s interpretation of a statute is most deferential when the statute and the official regulations that have been adopted by the agency are ambiguous regarding the particular issue in dispute. Title IX says that educational institutions that receive federal funds may not discriminate because of sex. The regulations, adopted decades ago, provide that educational institutions may designate separate facilities for use by males and females, so long as the facilities are equal in quality, but never directly address how to deal with transgender individuals whose “biological sex” differs from their gender identity. In this respect, concluded a majority of the court, the regulations are “ambiguous.” As such, the Department’s interpretation of the regulations should be deferred to by the court when they are a reasonable interpretation of the statute. Indeed, wrote Floyd, the Department’s interpretation is entitled to deference “unless the [school] board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

District Judge Doumar had concluded that the regulations were not ambiguous, and refused to defer to the Department interpretation. Judge Floyd devoted a section of his opinion to explaining why the regulations are ambiguous. “We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading – determining maleness or femaleness with reference exclusively to genitalia – and the Department’s interpretation – determining maleness or femaleness with reference to gender identity.” When language can support alternative readings, there is ambiguity. “The Department’s interpretation resolves the ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

Protesting against this conclusion, dissenting Circuit Judge Paul Niemeyer (who was, incidentally, also a dissenter in the 4^th Circuit’s Virginia marriage equality decision in 2014), found that it would produce unacceptable results by violating the “physiological privacy interest” of students who did not want to share restroom facilities with students whose biological sex differed from theirs. Judge Niemeyer essentially articulated, in more elevated terms, the arguments that North Carolina Governor Pat McCrory has been making in defense of the “bathroom” provisions in H.B. 2: that the privacy concerns of students who object to sharing facilities with transgender students should take priority over the interests of the transgender students.

But Judge Niemeyer doesn’t put it quite so crudely. Indeed, he suggests that the opinion letter from the Department authorized just what the school board did, by opining that schools could accommodate the needs of transgender students by providing unisex single-occupancy facilities for them to use. Judge Floyd points out, however, that the Department’s advice was to provide such facilities for students who did not want to use multiple-use facilities. In this case, G.G. wants to use the male-designated multiple-use facility as being congruent with his gender identity. As to the privacy concerns, the court noted that the school board has made physical modifications in the boys’ restrooms by adding partitions between urinals and taping over visual gaps in the toilet stalls so as to enhance the privacy of all users.

Judge Floyd emphasized that because G.G. was only contesting the school board’s policy on restrooms, the court did not have to deal with the question whether other single-sex facilities, such as locker rooms and shower rooms, would have to be open to transgender students as well. Judge Niemeyer observed that discrimination “because of sex” had to mean the same thing throughout the statute and regulations, so he argued that the majority opinion opened up the door to allowing transgender students to claim a right of access to all such sex-designated facilities.

In a somewhat unintentionally humorous footnote, Judge Floyd noted the school board’s argument, reiterated in Judge Niemeyer’s dissent, that allowing biological males into the girls’ restrooms and biological females into the boys’ restrooms could produce “danger caused by ‘sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.’” Floyd observed, perhaps tongue in cheek, “The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the ‘sexual responses prompted’ by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.” Yes! Here is a federal judge with real empathy for hormone-infused teenagers of every sexual orientation and gender identity!

In addition to appealing Judge Doumar’s dismissal of his Title IX claim, G.G. was also appealing the Judge Doumar’s refusal to issue a preliminary injunction that would require the school board to let him use the boys’ restroom facilities while the case proceeded. Judge Doumar had refrained from ruling on G.G.’s constitutional equal protection claim, so his case was still alive before the district court even though his Title IX claim was dismissed. Judge Doumar had focused his refusal of injunctive relief on his determination that G.G. failed to show that he would suffer irreparable harm if he was excluded from the boys’ restrooms while the case was pending.

The majority of the panel concluded that Doumar had wrongly refused to give appropriate consideration to the evidence presented by G.G. and his medical expert on this point, applying too strict a standard for considering evidence in the context of a motion for a preliminary injunction. The majority concluded that the appropriate step was to reverse the dismissal of the Title IX claim and send the case back to the district court for reconsideration of the motion for preliminary injunction, applying the correct evidentiary standard. This means that G.G. will be back to square one before the district court, but with the wind of the court of appeals decision behind his back on key issues in the case.

G.G. had asked the court of appeals to reassign the case to another district judge. Judge Doumar made various comments in court that suggested bias, or at least a refusal to believe in the validity of the concept of gender identity, with references to G.G. as a girl who wanted to be a boy. However, Judge Floyd pointed out, none of that objectionable language appeared in the written opinion that Judge Doumar released to explain his ruling, and the court was not going to conclude at this point that Doumar would not give appropriate consideration to the evidence when called upon by the court of appeals to reconsider his ruling, so the court denied G.G.’s request and the case will return to Judge Doumar.

The third member of the panel, Senior Circuit Judge Andre M. Davis, agreed with Judge Floyd that the Title IX claim should be revived, but would have gone further, contending that G.G. had satisfied the requirements for a preliminary injunction. However, since the grant of such an injunction is a matter within the discretion of the trial judge, he ultimately agreed to “defer to the district court in this instance. It is to be hoped,” he continued, “that the district court will turn its attention to this matter with the urgency the case poses. Under the circumstances here, the appropriateness and necessity of such prompt action is plain. By the time the district court issues its decision, G.G. will have suffered the psychological harm the injunction sought to prevent for an entire school year.”

Judge Niemeyer’s dissent, reminiscent of his dissent in the Virginia marriage equality case, harps on the “unprecedented” nature of the ruling, asserting that the court’s “holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” He also accused the majority of misconstruing the language of Title IX and its regulations, and concluded that “it reaches an unworkable and illogical result.”

G.G. is represented by the ACLU of Virginia and the ACLU’s national LGBT rights project. Joshua Block argued the appeal on his behalf on January 27.

NYLS Impact Center Salon on Transgender Issues

Posted on: September 28th, 2015 by Art Leonard No Comments

The New York Law School Impact Center is presenting a Salon on Transgender Issue on Tuesday, September 29. I am participating together with attorneys M. Dru Levasseur of Lambda Legal and Ezra Young. I prepared a case table on transgender law for distribution at the event and am sharing it here:

Selected Legal Decisions on Transgender Issues

Prepared by Arthur Leonard for NLYS Impact Center Salon, September 29, 2015.

Criminal Law:

City of Chicago v. Wilson, 75 Ill. 2d 525, 389 N.E.2d 522 (Ill. 1978) (Chicago ordinance penalizing cross-dressing could not be constitutionally applied to transgender people whose medical treatment required them to dress according to their gender identity).

People v. Arena, 107 A.D.3d 1440, 967 N.Y.S.2d 301 (N.Y. App. Div., 4th Dep’t. 2013) (allowing transgender witness, sworn as a man, to testify in feminine garb, did not violate due process rights of defendant).

Doe v. Balaam, 524 F. Supp. 2d 1238 (D. Nev. 2007) (magistrate rejected a claim by a transgender woman that her constitutional rights were violated when she was subjected to a strip search in connection with her arrest on a misdemeanor charge).

United States v. Guiterrez-Romero, 2008 WL 2951393 (9th Cir. 2008) (not officially published) (ordering trial court to explain sentencing factors and address how transgender status of prisoners is weighed when deciding what difficulties they may face in prison).

Discrimination Law:

Barnes v. City of Cincinnati, 401 F.3d 729 (6^th Cir.), cert. denied, 546 U.S. 1003 (2005) (allowing Title VII sex discrimination claim by transgender woman police officer discharged after transitioning).

Broadus v. State Farm Insurance Co., 2000 WL 1585257 (W.D. Mo. 2000) (Title VII does not provide a cause of action for transgender employee subjected to workplace harassment).

Buffong v. Castle on the Hudson, 12 Misc.3d 1193(A), 824 N.Y.S.2d 752 (Table), 2005 WL 4658320 (N.Y. Sup. Ct. 2005) (not officially published) (transgender plaintiff can sue for sex discrimination under NY Human Rights Law).

Cook v PC Connection, Inc., 2010 WL 148369 (D.N.H. 2010) (not officially published) (transgender job applicant’s failure to disclose prior identities on application provided non-discriminatory justification for refusing to hire her).

Cox v. Denny’s, Inc., 1999 WL 1317785 (M.D. Fla. 1999) (Title VII does not protect transgender woman from discrimination because of her gender identity).

Creed v. Family Express Corp., 2007 WL 2265630 (N.D. Ind. 2007) (transgender woman plaintiff may pursue Title VII claim against employer who discharged her for failing to comply with the company’s dress code).

Cummings v. Greater Cleveland Regional Transit Authority, 2015 WL 410867 (N.D. Ohio, Jan. 29, 2015) (transgender woman who had received a new birth certificate designating her sex as female would be considered a woman for purposes of a Title VII sex discrimination claim).

Dawson v. H & H Electric, Inc., 2015 U.S. Dist. LEXIS 122723, 2015 WL 5437101 (E.D. Ark., Sept. 15, 2015) (denying employer’s motion for summary judgment on transgender woman’s Title VII sex discrimination suit for discharge in response to transitioning).

Doe v. Brockton School Committee, 2000 WL 33342399 (Mass. App. Ct. 2000) (unofficially published disposition) (junior high school administration preliminarily enjoined from barring transgender student from school based on student’s refusal to wear gender-appropriate clothing as defined by school).

EEOC v. R.G. & G.R. Harris Funeral Homes, 2015 WL 1808308, 2015 U.S. Dist. LEXIS 53270 (E.D. Mich.) (court denies motion to dismiss Title VII sex discrimination claim brought by Equal Employment Opportunity Commission on behalf of transgender complainant).

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. September 20, 2007) (gender identity is not a suspect classification).

Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2nd Cir. 2015) (Union violates duty of fair representation under National Labor Relations Act by discriminating against transgender woman in operation of hiring hall program).

Freeman v Realty Resource Hospitality, LLC, d/b/a/ Denny’s of Auburn, 2010 WL 2328407 (Me. Super. Ct., 2010) (transgender woman has viable discrimination claim against fastfood restaurant whose manager barred her from using women’s restroom facilities).

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender woman because of her gender identity was sex discrimination for purposes of a 14th Amendment equal protection claim, invoking heightened scrutiny).

Goins v. West Group, 635 N.W.2d 717 (Minn. 2001) (state law ban on gender identity discrimination did not require employer to allow transgender woman to use restroom facilities designated for use by women).

Grossman, In re, 127 N.J. Super. 13, 316 A.2d 39 (App.), pet. Denied, 65 N.J. 292, 321 A.2d 253 (1974); Grossman v. Bernards Township Board of Education, 11 Fair Empl. Prac. Cas. (BNA) 1196, 11 Empl. Prac. Dec. (CCH) para. 10,686 (U.S. Dist. Ct., D. N.J. 1975), aff’d without opinion, 538 F.2d 319 (3rd Cir.), cert. denied, 429 U.S. 897 (1976) (saga of transgender public school teacher discharged after transitioning male to female, discharge upheld based on speculative conclusion that students exposed to the teacher after she transitioned would experience psychological trauma).

Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (App. Div. 1 Dept. 2005) (landlord did not violate NYC Human Rights Law prohibition of gender identity discrimination by insisting that patrons of tenant use public restrooms consistent with their biological sex rather than their gender identity).

Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting s.j. to employer on transgender employee’s Title VII claim on ground decision-maker was unaware of plaintiff’s gender identity and had non-discriminatory reason for discharge).

Lie v. Sky Publishing Corp., 2002 WL 31492397 (Mass. Superior Ct. 2002) (not officially published) (transgendered woman who claims she was discharged because of her refusal to dress as a man at work could claim unlawful discrimination on account of sex and disability).

Logan v. Gary Community School Corporation, 2008 WL 4411518 (N.D. Ind. 2008) (refusing to dismiss constitutional discrimination claims by male high school student who dressed as a girl and was barred from attending the senior prom thus attired).

Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D. Tex April 3, 2008) (transgender plaintiff may assert sex discrimination claim under Title VII).

Lusardi v. McHugh, EEOC DOC 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow transgender employee to use the restroom consistent with employee’s gender identity).

Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (EEOC, April 12, 2012) (reversing old agency rulings, holds that gender identity discrimination claims are actionable under Title VII as sex discrimination).

Maffei v. Kolaeton Indus., Inc., 164 Misc.2d 547 (N.Y. Sup. Ct. 1995) (transgender plaintiff can sue for sex discrimination under NY Human Rights Law).

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (not a gender identity case, but crucial to the theory that Title VII and other federal bans on sex discrimination should be construed to encompass gender identity claims under a “sex stereotype” theory).

Richards v. United States Tennis Association, 93 Misc. 2d 713, 400 N.Y.S. 2d 267 (Sup. Ct., N.Y. Co., 1977)(transgender woman entitled to compete as a woman in U.S. Open tennis tournament without being subjected to chromosomal testing for gender; tournament officials’ position per contra would violate NY Human Rights Law ban on sex discrimination).

Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir.2000) (bank discrimination against transgender woman violates sex discrimination provision of Fair Credit Act).

Schroer v. Billington, 525 F. Supp. 2d 58 (D.D.C. 2007) (allowing Title VII sex discrimination claim by transgender woman whose job offer was rescinded when she told employer she would transition before beginning job).

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir.2000) (Violence Against Women Act covers violence against transgender women).

Smith v. City of Salem, Ohio, 378 F.2d 566 (6th Cir. 2004) (allowing Title VII sex discrimination claim by transgender woman discharged as firefighter after transitioning)

Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470 (Iowa 1983) (federal and state civil rights laws banning sex discrimination are not applicable to discrimination against a person because they transition from one gender to the other).

Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (denying employment sex discrimination claim under Title VII by transgender woman discharged as commercial airline pilot after transitioning).

Family Law:

Application for a Marriage License for Jacob B. Nash and Erin A. Barr, 2003-Ohio-7221, 2003 WL 23097095 (Ohio Ct. App. 2003) (not reported in N.E.2d) (transgender man may not marry a woman under Ohio marriage statute that contemplates only marriages of different-sex couples).

Daly v. Daly, 102 Nev. 66, 715 P.2d 56, cert. denied, 479 U.S. 876 (1986) (holding that a father’s parental rights should be terminated when father transitions to female gender).

Gardiner, In re Estate of, 273 Kan. 191, 42 P.3d 120, cert. denied, 537 U.S. 825 (2002) (marriage between man and transgender woman was void so she was not surviving spouse for purposes of inheritance rights).

K.B. v. J.R., 887 N.Y.S.2d 516, 2009 WL 3337592 (Sup. Ct., Kings Co. 2009) (exceptional circumstances gave transgender man standing to petition for custody of the child his wife conceived through donor insemination).

Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2nd Dist. 2004) (marriage between woman and transgender man was void ab initio, so he was not deemed father of children she bore during marriage).

Karin T. v. Michael T., 127 Misc.2d 14 (Fam. Ct., Monroe Co., 2007) (transgender man who married woman and argued invalidity of marriage could not escape support obligations).

Ladrach, In re., 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate Ct.1987) (transgender woman could not marry a man).

Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999) (marriage between man and transgender woman contracted in another state was void under Texas law, so transgender woman was not surviving spouse of decedent and could not bring a wrongful death action).

M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) (marriage between man and transgender woman was valid).

Pierre v. Pierre, 898 So.2d 419 (La. App. 1st Cir. 2004) (trial court did not abuse discretion by enforcing visitation rights of transgender man with children conceived during his marriage to birth mother of children; dissent argued that as husband had been born female, married was void ab initio and he could not claim parental rights).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (state bans on same-sex marriage violate the 14^th Amendment; one consequence of this ruling, not discussed by the court, is that transgender people will face no barriers in marrying persons of either sex).

Smith v. Smith, 2007 WL 901599 (Ohio App. 7 Dist. 2007) (custody of a boy exhibiting signs that he wanted to be treated as a girl should be switched from his mother, who accepted son’s desire to transition, to his father, who did not believe his son was transgender).

Identity Claims/Birth Certificates/Name Changes:

A.B.C. v. New York State Department of Health, 35 Misc.3d 565, 939 N.Y.S.2d 691 (N.Y. Sup.Ct. 2012) (trial court refuses to issue legal declaration of sex reassignment, claiming lack of jurisdiction to do so for petitioner resident in NY but born in California).

A.M.B., In re, 997 A.2d 754 (Me. 2010) (trial court could not refuse name-change petition without justification as a matter of “discretion” – court’s decision never mentions petition was transgender man, as revealed in appellate brief).

Birney v. NYC Department of Health and Mental Hygiene, 34 Misc.3d 1243 (A), 2012 WL 975082 (Sup. Ct. 2012) (table) (ordering NYC Health Department to reconsider refusal to issue new birth certificate to transgender applicant who had undergone reassignment surgery).

Brown, In re Robert Floyd, 770 S.E.2d 494 (Va. Sup. Ct. 2015) (transgender federal prisoner was entitled to receive legal name change).

Change of Birth Certificate, In re, 22 N.E.3d 707 (Ind. Ct. App. Dec. 4, 2014) (construing state law to allow transgender persons to apply for new birth certificates consistent with their gender identity).

Doe, Matter of John, [Index Number Redacted by Court], NYLJ 1202601879249, at *1 (N.Y. Sup. Ct., Westchester Co., May 16, 2013) (ordering NY State Education Department to issue professional license in new name of transgender licensed professional).

E.P.L., In the Matter of the Application for Change of Name, 26 Misc.3d 336, 891 N.Y.S.2d 619 (N.Y.Sup. Ct., Westchester Co. 2009) (usual requirement that name change notices be published was waived and court record sealed at applicant’s request, due to risk that publication of transgender applicant’s name change might attract adverse attention).

Golden, In the Matter of Earl William, III, 56 A.D.3d 1109, 867 N.Y.S.2d 767 (N.Y.A.D., 3d Dept., 2008) (trial judge’s rejection of name change on ground that it would cause “confusion” is not legitimate basis for denying petition, where change wasn’t being sought for purposes of fraud or deception).

Grey v. Hasbrouck, 2015 IL. App. (1st) 130267, 2015 Ill. App. LEXIS 399 (Ill. May 22, 2015) (awarding attorneys’ fees to plaintiff as prevailing party in suit challenging state’s require of genital surgery as a prerequisite to issuance of new birth certificate to a transgender person).

Heilig, In re, 816 A. 2d 68 (Md. Ct. App. 2003) (ruling Maryland courts have jurisdiction to issue declarations of gender status for Maryland citizens born out-of-state).

Powell, In re, 95 A.D.3d 1631, 945 N.Y.S.2d 789 (N.Y. App. Div., 3rd Dept. 2012) (transgender inmate entitled to legal name change with evidence of sex reassignment surgery, as male or female identity associated with particular names is a matter of social convention, not law).

Shaw v. District of Columbia, 944 F.Supp.2d 43 (D.D.C. 2013) (transgender woman was entitled to be treated as a legal woman by police and court officers).

Somers v. Superior Court of City and County of San Francisco , 172 Cal.App.4th 1407, 92 Cal.Rptr.3d 116 (2009) (California-born non-resident transgender applicant entitled to replacement birth certificate; insisting on residency requirement would unconstitutionally discrimination based on equal protection and right to travel).

California-born transsexual who lives out of state can receive replacement birth certificate showing current gender, even though the statute allowing for issuance of such birth certificates requires that applications for the new certificate must be filed in the county where the petitioner resides; because this discriminates against California-born transsexuals who reside out of state, equal protection and right to travel were implicated)

Winn-Ritzenberg, In the Matter of the Application for Change of Name, 26 Misc.3d 1891, N.Y.S.2d 220 (N.Y. Sup.Ct., App. Term., N.Y. Co. 2009) (medical evidence of sex-reassignment is not legal prerequisite for transgender applicant’s requested name change).

Medical Treatment/Access to Care/Health Insurance Coverage:

D.F. v. Carrion, 43 Misc.3d 746, 986 N.Y.S.2d 769 (N.Y. Sup. Ct. 2014) (NYC’s Administration for Children’s Services (ACS) must pay for gender reassignment procedures, including surgery, for transgender girl in the foster care system.)

O’Donnabhain v Commissioner, 134 T.C. 34 (U.S. Tax Court 2010) (cost of medical treatments for gender transition mostly fall under the definition of tax exempt medical expenses as, depending on the individual’s case, treatment for GID can be necessary for one’s health).

Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye & Dental Fund, 2012 WL 1094452 (D.Minn. 2012) (unpublished decision) (union wrongly removed wife of a member from health insurance benefit program after learning she was transgender woman; although born a man, the wife is legally recognized as a woman and as legal spouse is eligible for the benefit plan).

Wilson v Phoenix House, 2011 WL 3273179 (S.D.N.Y., Aug. 1, 2011) (unpublished decision) (transgendered inmate may proceed on claim that in-patient substance abuse treatment center discriminated in violation of New York Human Rights Law and Equal Protection Clause by not allowing her to participate in the support groups consisting of members of her preferred gender).

Prisoner Rights:

Babcock v Clarke, 2009 WL 911214 (E.D. Wash. 2009) (prison officials have legitimate penological interest to use transgender woman inmates legal male name as part of standardized identification procedures).

Barrett v. Coplan, 292 F.Supp.2d 281 (D. N.H. 2003) (transgender inmate denied any treatment for her condition may assert claim for deprivation of constitutional rights against prison officials).

Battista v Clarke, 645 F.3d 449 (1st Cir. 2011) (prison authorities must provide hormone therapy and appropriate clothing for inmate diagnosed with gender dysphoria).

Doe v Yates, 2009 WL 3837261 (E.D. Cal., Nov 16, 2009) (transgender woman housed with dangerous male inmates who raped and assaulted her stated a claim for failure to protect under 8th Amendment and retaliation and Equal Protection claims).

Farmer v. Brennan, 511 U.S. 825, 840-44 (1994)(transgender inmate has a right under 8^th Amendment to protected against obvious dangers while incarcerated).

Fields v. Smith, 653 F.3d 550 (7th Cir. 2011), cert. denied, 132 S. Ct. 1810 (2012) (state’s blanket prohibition on hormone treatment and sex reassignment procedures for transgender prison inmates violates 8th Amendment ban on cruel and unusual punishment).

Giraldo v. California Department of Corrections and Rehabilitation, 168 Cal.App.4th 231, 85 Cal.Rptr.3d 371 (Cal. App. 1st Dist. 2008) (holding that jailors have duty of care to transgender inmate who was brutally raped and abused while incarcerated).

Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004) (transgender woman prisoner has the right to a trial of her claim that the prison warden violated her 8th Amendment right to be free of cruel and unusual punishment by knowingly placing her in a position to be physically assaulted by another prisoner).

Houston v. Trella, 2006 WL 2772748 (D.N.J. 2006) (denying treatment on other than medical grounds creates a triable 8th Amendment issue in suit by transgender woman who sought hormone treatment held by the New Jersey prison system at the request of the INS).

Konitzer v Frank, 711 F.Supp.2d 874 (E.D.Wis. 2010) (transgender woman’s constitutional rights not violated by male corrections officers performing strip and pat-down searches).

Kosilek v. Spencer, 891 F.Supp.2d 226 (D. Mass. 2012), aff’d, 740 F.3d 733 (1st Cir.), rev’d, 774 F.3d 63 (1st Cir. en banc, 2014), cert. denied, 135 S. Ct. 2059 (May 4, 2015) (state prison could refuse to provide sex reassignment procedures for transgender woman incarcerated for life without parole).

Lynch v. Lewis, 2015 U.S. Dist. LEXIS 35561, 2015 WL 1296235 (M. D. Ga., March 23, 2015) (denied qualified immunity defense of prison doctors who refused hormone therapy for transgender inmate; constitutional right to receive such therapy is established).

Meriwether v Faulkner, 821 F.2d 408 (7th Cir. 1987) (prison officials cannot deny all treatments to a transgender inmate, but stating in dicta that this does not guarantee the inmate “any particular type of treatment”).

Norsworthy v. Beard, 2015 WL 1500971 (N.D. Calif. April 2, 2105), stayed pending appeal by 9th Circuit (state policy against providing sex reassignment surgery for transgender inmates violates the 8th Amendment).

Rosati v. Igbinoso, 2015 WL 3916977 (9th Cir. June 26, 2015) (district court erred in screening out as non-actionable a pro se transgender inmate’s suit seeking sex reassignment surgery).

Smith v. Hayman, 489 Fed. Appx. 544, 2012 WL 3024429 (3rd Cir. 2012) (difference of opinion between medical staff and inmate about appropriate treatment for inmate’s claimed gender dysphoria does not constitute “deliberate indifference” required for an 8^th Amendment claim).

White v. United States, 958 A.2d 259 (D.C. App. 2008) (affirming first-degree assault charges against corrections officer charged with forcing transgender woman inmate to perform oral sex on him).

Refugee Status/Asylum/Withholding of Removal/Convention Against Torture (CAT):

Gutierrez v. Holder, 540 Fed. Appx. 613 (Mem), 2013 WL 4873881, 2013 U.S. App. LEXIS 19033 (9th Cir. 2013) (denies petition to review determination against CAT protection by the BIA, because conditions for transgender individuals in Mexico have improved significantly).

Hernandez v. Lynch, 2015 U.S. App. LEXIS 15685, 2015 WL 5155521 (9^th Cir., Sept. 3, 2015); Godoy-Ramirez v. Lynch, 2015 U.S. App. LEXIS 15717 (9^th Cir., Sept. 3, 2015); Mondragon-Alday v. Lynch, 2015 U.S. App. LEXIS 15713 (9^th Cir., Sept. 3, 2015) (an apparent rejection of Gutierrez, above, holding that ongoing persecution of transgender women in Mexico would justify protection under the CAT, with recognition that advances for LGB people do not necessarily mean similar advances for transgender people).

Morales v. Gonzales, 472 F.3d 689 (9th Cir. 2007) (in determining whether transgender woman from Mexico was entitled to protection under CAT, Immigration Judge must take into consideration willful blindness of Mexican correctional officials who allegedly looked the other way and failed to intervene when woman was been raped by fellow inmates).

Students’ Rights:

Doe v. Regional School Unit 26, 86 A.3d 600 (Maine Supreme Jud. Ct., 2014) (transgender public school student entitled to use restroom consistent with student’s gender identity).

G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va., Sept. 17, 2015) (Dismissing Title IX sex discrimination by transgender boy denied use of boys’ restroom facilities by Board of Education policy; refusing preliminary injunctive relief on equal protection claim).

Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education, 2015 U.S. Dist. LEXIS 41823, 2015 WL 1497753 (W.D. Pa., March 31, 2015) (University did not violate Title IX ban on sex discrimination by refusing to allow transgender man to use men’s restroom and locker room facilities on campus).

Reference:

Dru Levasseur, GENDER IDENTITY DEFINES SEX: UPDATING THE LAW TO REFLECT MODERN MEDICAL SCIENCE IS KEY TO TRANSGENDER RIGHTS, 39 Vt. L. Rev. 943 (2015).

Reference:

Executive Order 13672, signed by President Obama on July 21, 2014, forbids gender identity discrimination in the executive branch of the federal government. The Defense Department is expected to end its regulatory ban on service by transgender uniformed personnel in the spring of 2016.

Nineteen states, the District of Columbia and Puerto Rico have statutes that protect against gender identity discrimination in employment in the public and private sector: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington.

Six states have an executive order, administrative order, or personnel regulation prohibiting discrimination in public employment based on sexual orientation and gender identity only: Indiana, Kentucky, Michigan, Pennsylvania, and Virginia. One state prohibits discrimination based on gender identity in public employment only: New York. Ohio previously included gender identity, until Governor John Kasich allowed the executive order covering it to expire in January 2011. In February 2015, Kansas Governor Sam Brownback rescinded an executive order prohibiting discrimination based on sexual orientation and gender identity, previously introduced by Governor Kathleen Sebelius.

At least 185 cities and counties (including New York City) prohibit discrimination on the basis of gender identity for both public and private employees.

(Source: Wikipedia visited on September 28, 2015)