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New York Federal Judge Vacates Trump Administration “Conscience” Regulation

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Paul A. Engelmayer issued an extraordinarily lengthy opinion on November 6, concluding that a regulation adopted by the Trump Administration’s Department of Health and Human Services (HHS) intended to protect from discrimination employees in the health care industry who refused to provide services because of their religious beliefs is invalid.   The case is State of New York v. U.S. Department of Health and Human Services, 2019 WL 5781789, 2019 U.S. Dist. LEXIS 193207 (S.D.N.Y.).

 

The lawsuit was brought by a coalition of states, cities, Planned Parenthood, and a Family Planning and Reproductive Health services organization, that stood to lose substantial federal funding for their programs if they were found to violate the regulation, which imposed substantial compliance requirements on them.  They argued that the measure violated the First Amendment’s prohibition on an “establishment of religion.”  But Judge Engelmayer, rejecting a “facial” Establishment Clause challenge, instead premised his ruling on other arguments by the plaintiffs, asserting violations of the Administrative Procedure Act (APA) and the Spending Clause and Separation of Powers requirements of the Constitution.

 

Judge Engelmayer summarized the Rule, which was adopted on May 21 (84 Fed. Reg. 23,170 – codified at 45 C.F.R. pt. 88), originally set to go into effect on July 22, to “interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.”  The statutory provisions, usually added to particular laws as amendments offered by legislators during congressional consideration of the bills, are usually referred to as “conscience provisions.” After this lawsuit was filed, HHS agreed to delay the effective date of the regulation until November 22, so it has never actually gone into effect and will not go into effect any time soon unless the government obtains a stay of Judge Engelmayer’s opinion pending an appeal.

 

Most of the conscience provisions are intended to protect employees who refuse to participate in performing abortions, sterilizations, or assisted suicides, but some go further, extending to any medical practice or procedure, and theoretically could protect employees who refuse to provide services to LGBTQ people due to religious or moral objections.  While some of the provisions were aimed specifically at licensed health care professional employees who actually perform such procedures, others could theoretically apply to any employee – such as an orderly, an ambulance driver, or anybody else employed in a supportive or administrative role – whose religious or moral beliefs would be compromised by providing the service in question.

 

In addition to describing the various statutory conscience provisions, Judge Engelmayer noted a provision in Title VII of the Civil Rights Act of 1964, which requires employers to make a “reasonable accommodation” to the religious practices or beliefs of employees, with the test of reasonableness being whether the accommodation would impose an undue hardship on the employer.  The Supreme Court has traditionally interpreted this provision to require employers to bear no more than a “de minimus” expense to accommodate religious objectors.

 

The George W. Bush administration promulgated a conscience regulation late in 2008 that was to take effect on the first day of the Obama Administration, but a legal challenge was filed and although “much of the rule” did take effect while the litigation continued, many contentious provisions were never rigorously enforced and HHS rescinded much of that Rule in 2011.

 

After taking office, President Trump issued an executive order titled “Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in federal law” and generally stating that the federal government should protect religious freedom to the extent possible under the Constitution.  On October 6, 2017, Attorney General Jeff Sessions issued a memorandum proclaiming that under the 1st Amendment’s Free Exercise Clause, an individual has “the right to perform or abstain from performing certain physical acts in according with one’s beliefs,” mentioning many of the statutory conscience provisions.  HHS then proceeded to issue a notice of proposed ruling-making to translate Sessions’ memorandum into written regulations, publishing its “final rule” on May 21, 2019.

 

Judge Engelmayer found that the 2019 Rule “substantially expands” on the 2008 Rule, applying to more than 30 conscience provisions (where the 2008 Rule applied to only three of them). He includes a detailed description of the Rule, including its very broad definition of which employees and entities are covered, a very broad definition of what counts as “discrimination,” and detailed procedures that employers in the health care field are supposed to follow to ensure that employees know about their rights to object or abstain, including requirements to certify their compliance with the Rule as a condition of receiving funding under federal programs, such as Medicare.  The stated intent of the Rules is to go as far as the Constitution and statutes allow in protecting those who object to doing their job because of religious, moral or ethical objections to particular procedures or practices by holding the loss of funding over employers who fail to accommodate religious objectors to the extent spelled out in the Rule.

 

The plaintiffs advanced five constitutional arguments against the rule.  They first argued that it violates the Establishment Clause, by forcing recipients of federal funds to “conform their business practices to the religious practices of their employees, imposing an absolute duty to accommodate such practices,” going far beyond the existing accommodation duty under Title VII of the Civil Rights Act.  Second, they argued it violates the Spending Clause because the threat to withhold all federal funding for is “unconstitutionally coercive” and because the conditions it imposes are “ambiguous, retroactive, not reasonably related to the purpose of HHS’s programs under which the funds are provided, and thus unconstitutional.”  They argued that the Rule violates the constitutional separation of powers by, among other things, empowering the executive branch to unconstitutionally impound funds that Congress has appropriated.  They also made two Fifth Amendment arguments: void for vagueness as a result of ambiguities and inconsistences with other federal laws, inviting arbitrary enforcement; and violating the due process rights of patients to privacy and liberty, in particular by interfering with patients’ ability to obtain abortions and other procedures to which some health care workers object.

 

Judge Engelmayer rejected the government’s argument that the rule was merely a “housekeeping” measure intended to consolidate enforcement of the various statutory conscience provisions by centralizing enforcement in HHS’s Office of Civil Rights and to standardize definitions and requirements that varied among the thirty statutes.  Instead, he found, the Rule made substantive changes in the law.

 

“On this threshold dispute,” wrote the judge, “there is a definite answer.  Although the 2019 Rule has housekeeping features, plaintiffs’ description of it as largely substantive – and, indeed, in key respects transformative—is correct.  And HHS’s characterization of the Rule as solely ministerial cannot be taken seriously.”  He noted that the government had actually abandoned this position during oral argument.  “Whether or not the rule was properly adopted,” he wrote, it “unavoidably would shape the primary conduct of participants through the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated.  And the maximum penalty the Rule authorizes for a violation of the Conscience Provisions – the termination of all of a recipient’s HHS funding, from whatever program derived – is new, too.”

 

Supporting this conclusion, Judge Englemayer explained how the rule vastly expanded employers’ religious accommodation requirements under Title VII of the Civil Rights Act, how it substantially broadened the definition of “protected activities” of religious objectors, down to the level of protecting a receptionist who might refuse to schedule a patient for a procedure to which the receptionist has ethical objections.  Unlike the statutory conscience provisions, he noted, the Rule would “for the first time” permit “abstention from activities ancillary to a medical procedure, including ones that occur on days other than that of the procedure.”  It also extended the definition of “covered entities” from health care providers to pharmacists and medical laboratories, and significantly expands the financial exposure of covered entities by authorizing draconian cut-offs of funding.

 

Judge Engelmayer decided the Rule is not a facial violation of the Establishment Clause, which would require finding that all of its provisions are unconstitutional in all their potential applications, but he acknowledged that it could be challenged “as applied” to particular situations – a test that might never arise because of his action in declaring the Rule invalid on other grounds.

 

First, the judge found that HHS did not comply with the requirements of the Administrative Procedure Act governing the adoption of regulations, by going beyond the limits of rulemaking authority.  Agencies must base their rules and regulations on statutory policy decisions expressed by Congress, and cannot engage in legislating beyond those policy decisions.  The judge found that in this Rule HHS went over the line into legislation, especially noting the way the Rule expanded definitions, covered entities, enforcement authority, and penalties.  He found that HHS did not have authority under the APA to make all of these substantive legal changes without specific authorization in the statutes.

 

The sheer scale of the Rule’s potential impact played a large part in the decision.  The judge found that the Rule “puts in jeopardy billions of dollars in federal health care funds.  In fiscal year 2018, for example,” he wrote, “the State Plaintiffs received $200 billion in federal health care funding.  New York alone received $46.9 billion. The Provider Plaintiffs similarly received hundreds of millions in funding from HHS.”  He also noted the political significance of the Rule, as it took positions beyond those actually taken by Congress on such controversial issues as abortion and assisted suicide.

 

“In a case involving economic consequences and political dynamics on such a scale,” wrote the judge, “the Supreme Court teaches that ‘we expect Congress to speak clearly’ were it to delegate rulemaking authority. . .  Far from speaking clearly here, in none of the three statutes at issue did Congress give any indication that it intended to subcontract the process of legal standard-setting to an administrative agency in particular, or HHS in particularly,” noting that the three principal statutes with Conscience Provisions don’t even mention HHS.  And, the judge rejected the government’s contention that such a delegation was “implicit” in the enactment of those conscience provisions.  He noted that the Supreme Court had rejected a similar “implicit delegation” argument in connection with its interpretation of Title VII’s accommodation provisions and the attempts by the EEOC to interpret them.

 

He also concluded that HHS did not act in accordance with law in promulgating the rule, having taken shortcuts (rather typical of the Trump Administration) in skirting the detailed procedures set out in the APA.  The two most important flaws the court found were establishing rules that conflict with Title VII, and rules conflicting with the Emergency Medical Treatment and Labor Act (EMTLA), by purporting to authorize employees with religious objections to withhold services in emergency situations.  The judge found that two basic Title VII concepts that the Rule “overrides” are key components of the specific language Congress adopted in 1972 amendments to Title VII “to address workplace religious objections.”  An agency cannot displace express statutory provisions by adopting a contrary rule.  Similarly, he noted that EMTLA “does not include any exception for religious or moral refusals to provide emergency care” and courts had declined to “read in” exceptions to that statute’s mandates, but the HHS Rule “applies in emergency-care situations,” purporting to create a “conscience exception” in a law that does not have one.

 

Also, turning to the APA’s substantive requirements, an agency that is adopting a rule that changes the law is required to document the need for such a change.  In this case, HHS just lied, claiming that there had been a substantial increase in complaints by health care employees about being forced to perform objectionable procedures or being disciplined for refusing to do so.  “In fact, upon the Court’s review of the complaints on which HHS relies,” wrote Engelmayer, “virtually none address the Conscience Provisions at all, let alone indicate a deficiency in the agency’s enforcement capabilities as to these laws.  And HHS, in this litigation, admitted that only a tiny fraction of the complaints that its Rule invoked as support were even relevant to the Conscience Provisions.  A Court ‘cannot ignore the disconnect between the decision made and the explanations given,’” he wrote, quoting from Chief Justice John Roberts’ opinion in June striking down the Trump Administration’s attempt to add citizenship questions to the 2020 Census Forms.  In that case, the Supreme Court found evidence that the Administration wanted to add the questions for political purposes, but prompted the Justice Department to come up with a phony justification invoking data needs to enforce the Voting Rights Act, even though experts in the Census Bureau warned that adding the questions would make the Census count less accurate by deterring non-citizens resident in the U.S. from participating.  He pointed out that the large majority of religiously-connected complaints received by HHS had to do with vaccinations, “which HHS admits fall outside the scope of the Conscience Provisions and the Rule.”

 

He also found unconvincing other explanations offered by HHS, and was especially critical of ways in which the Final Rule differed from the Rule as it was originally proposed and published for public comment concerning the definition of “discrimination.”  The judge concluded, in sum, that failed procedures in adopting the Rule under the APA were sufficient to invoke the court’s authority to declare the rule invalid and order it to be “vacated.”

 

But there was more, because the judge also found constitutional violations both of separation of powers and the Spending Clause.

 

Judge Engelmayer focused on the Rule’s remedial provision authorizing the termination of all HHS funding to an entity found to have violated the Rule, finding that this had not been authorized by Congress.  Thus, its adoption was a serious violation of the separation of powers.  He agreed with plaintiffs that the Rule “is inconsistent with the separation of powers because it allows HHS to withhold congressionally-appropriated federal funds to an extent that neither the [statutory] Conscience Provisions nor any other statute authorizes.  By claiming the power to do so, plaintiffs argue, HHS arrogates to itself, an executive agency, a power the Constitution allocates uniquely to Congress.”

 

Responding to this argument, the judge pointed out that an agency “must exercise its delegated spending authority consistent with specific congressional grant” and that an “agency may not withhold funds in a manner, or to an extent, unauthorized by Congress.” Thus, the remedial provision of the Rule exceeds the agency’s authority.

 

Furthermore, he found other violations specifically routed in the Supreme Court’s interpretation of the Spending Clause.  He noted four principles relevant to this case: “conditions based on the receipt of federal funds must be set out unambiguously,” the “financial inducement offered by Congress” must not be “impermissibly coercive,” the conditions must relate “to the federal interest in the project and to the overall objective thereof,” and “the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”  Judge Engelmayer found it clear that the Rule violated at least the first two of these principles, pointing to specific ambiguities and internal contradictions in the Rule. And the draconian forfeiture of all funding as a remedy for a violation of the Rule was “impermissibly coercive.”

 

Finally, he concluded that the faults he had detected merited an order to the agency to vacate the Rule.  He pointed out that it has long been “standard practice under the APA” for a court to order that a rule be vacated when the court determines that “agency regulations are unlawful.”  He quoted a Supreme Court opinion on point, stating that “regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory minimum found in that Act.”  The APA itself says that a court shall “hold unlawful and set aside agency action, findings and conclusions” that the court finds to be “arbitrary and capricious, not in accordance with law, in excess of statutory authority, unconstitutional, or made without observance of procedures required by law.”

 

The judge rejected the government’s suggestion that he could go through the Rule stripping out objectionable parts and letting the rest go into effect, commenting that “the APA violations that the Court has found… are numerous, fundamental, and far-reaching.  The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes.  The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting health care employment and emergency contexts.  The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.”  Letting a few selected provisions go into effect would “ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

 

He also rejected HHS’s suggestion, common to Trump Administration arguments when courts are finding its executive actions invalid, that his order should be limited in effect to the Southern District of New York, or just to the named plaintiffs in the case, pointing out that this would lead to a proliferation of litigation around the country “to assure that such a Rule was never applied,” finding plenty of precedential support for this position in prior court of appeals opinions supporting trial court orders to vacate unlawfully promulgated rules.

 

“The Conscience Provisions recognize and protect undeniably important rights,” wrote Engelmayer.  “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions.  In the future, however, the agency must do so within the confines of the APA and the Constitution.”

Federal Court Rejects Christian Agency’s Claimed Constitutional Right to Discriminate Against Same-Sex Couples Seeking to Adopt Children

Posted on: May 27th, 2019 by Art Leonard No Comments

U.S. District Judge Mae A. D’Agostino has rejected a Christian social welfare agency’s bid to be exempted from complying with non-discrimination regulations promulgated by the New York Office of Children and Family Services (OCFS).  Ruling on May 16 in New Hope Family Services, Inc. v. Poole, 2019 WL 2138355, 2019 U.S. Dist. LEXIS 2138355 (N.D.N.Y.), the court rejected a variety of constitutional arguments advances by the plaintiff in support of its claim of a constitutional right to discriminate against same-sex couples seeking to adopt children.

The plaintiff, New Hope Family Services, is an “authorized agency” with the authority to “place out or to board out children” and “receive children for purposes of adoption” under the New York Social Services Law and regulations adopted by the Office of Children and Family Services.  Under the law, the agency must “submit and consent to the approval, visitation, inspection and supervision” of OCFS, which must approve the agency’s certificate of incorporation.  Pastor Clinton H. Tasker founded New Hope in 1958 “as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them,” wrote Judge D’Agostino.  Because of its religion beliefs, New Hope “will not recommend or place children with unmarried couples or same sex couples as adoptive parents,” it states in its complaint.  New Hope’s “special circumstances” policy states: “If the person inquiring to adopt is single . . . the Executive Director will talk with them to discern if they are truly single or if they are living together without benefit of marriage… because New Hope is a Christian Ministry it will not place children with those who are living together without the benefit of marriage.  If the person inquiring to adopt is in a marriage with a same sex partners . . . the Executive Director will explain that because New Hope is a Christian Ministry, we do not place children with same sex couples.”

Prior to 2010, New York’s Domestic Relations Law provided that authorized agencies could place children for adoption only with “an adult unmarried person or an adult husband and his adult wife.”  In September 2010, New York amended the law to allow placements with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.”  After New York adopted its Marriage Equality law in 2011, OCFS issued a letter on July 11, 2011, stating that the intent of its regulations “is to prohibit discrimination based on sexual orientation in the adopting study assessment process.  In addition, OFCS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”  In 2013, the adoption regulations were amended to prohibit outright discrimination “against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability.”  OCFS followed this up with an “informational letter” in 2016, advising authorized agencies to formalize their non-discrimination policies consistent with the regulations.

In its complaint challenging these developments, New Hope (represented by Alliance Defending Freedom, the anti-LGBT religious litigation group) claims, according to Judge D’Agostino, that the agency promulgated these regulations “purporting to require adoption providers to place children with unmarried and same-sex couples in complete disregard for the law, the scope of OFCS’s authority, and the rights of adoption providers.”

The lawsuit stemmed from action by OFCS, contacting New Hope early in 2018 to inform the agency that “under a new policy implemented in 2018, OFCS would be conducting comprehensive on-site reviews of each private provider’s procedures,” and following up in mid-July with an email to schedule New Hope’s program review, including a list of things that had to be reviewed, including New Hope’s “policies and procedures.”  OFCS requested a copy of New Hope’s formal policies and procedures as part of this review.  Later in 2018, after reading New Hope’s procedures, OFCS Executive Director Suzanne Colligan called New Hope, noting the “special circumstances” provision, and informing new Hope that it would “have to comply” with the regulations “by placing children with unmarried couples and same-sex couples,” and that if New Hope did not comply, it would be “choosing to close.”  New Hope ultimately refused to comply after a series of email and letter exchanges with OFCS.

New Hope filed its complaint on December 6, 2018, claiming 1st and 14th amendment protection for its policies, claiming that OFCS’s interpretation of state law “targets, show hostility toward, and discriminates against New Hope because of its religious beliefs and practices” and also violates New Hope’s freedom of speech.  The complaint also alleged an equal protection violation, and claimed that the state was placing an “unconstitutional condition” by requiring New Hope to comply with the non-discrimination policy in order to remain an “authorized agency.”  The complaint sought preliminary injunctive relief against enforcement of the policy.

New Hope tried to escape the precedent of Employment Division v. Smith, 494 U.S. 872 (1990), which holds that there is no free exercise exemption from complying with neutral state laws of general application, by relying on a statement in Hosannah-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), in which the Supreme Court held that the 1st Amendment protects religious institutions from government interference in their selection of ministerial personnel.  New Hope argued that “cases teach that even a genuinely ‘neutral law of general applicability’ cannot be applied when to do so would interfere in historically respected areas of religious autonomy.”  New Hope claimed that the state regulation was adopted “for the purpose of targeting faith-based adoption ministries” and thus was “not neutral or generally applicable as applied.”

Judge D’Agostino was not convinced, referring to a decision by the U.S. District Court in Philadelphia rejecting similar arguments by Catholic Social Services in that city in Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2019), which has been affirmed by the 3rd Circuit Court of Appeals, 922 F.3d 140 (April 22, 2019).  The judge observed that the courts in the Philadelphia case had found similar requirements under a Philadelphia anti-discrimination ordinance to be “facially neutral and generally applicable” and “rationally related to a number of legitimate government objectives.”  And, she noted, “In affirming the district court, the Third Circuit rejected CSS’s claims that the application of the anti-discrimination clause is impermissible under Smith and its progeny.”  Judge D’Agostino found the 3rd Circuit’s ruling persuasive in this case.

“On its face,” wrote the judge, “18 N.Y.C.R.R. sec. 421.3(d) is generally applicable and it is plainly not the object of the regulation to interfere with New Hope’s, or any other agency’s, exercise of religion.”  She found that the requirement to comply is imposed on all authorized agencies, “regardless of any religious affiliation,” and that it is neutral.  “Nothing before the Court supports the conclusion that section 421.3(d) was drafted or enacted with the object ‘to infringe upon or restrict practices because of their religious motivation.”  The adoption of the requirement was a natural follow-up to the legislature’s passage of a law that codified “the right to adopt by unmarried adult couples and married adult couples regardless of sexual orientation or gender identity.”  The purpose was to prohibit discrimination.

The court also rejected the argument that the regulations are not neutral because they allow agencies to take account of a variety of factors in evaluating proposed adoptive parents, including “the age of the child and of the adoptive parents, the cultural, ethnic, or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such background as one of a number of factors used to determine best interests.”  As the 3rd Circuit found in Fulton, there is a significant difference between a policy of outright refusal to place children with unmarried or same-sex couples and the application of an evaluative process focusing on the characteristics described in the regulations.  “Further,” wrote D’Agostino, “nothing in the record suggests that OCFS has knowingly permitted any other authorized agency to discriminate against members of a protected class.”

New Hope also argued that the enforcement of the regulation was not neutral, instead evincing hostility against religious agencies such as itself.  Rejecting this argument, the judge wrote, “The fact that New Hope’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that OCFS’s decision to regulate that conduct springs from antipathy to those beliefs,” quoting key language from the 3rd Circuit: “If all comment and action on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The court also rejected New Hope’s argument that the regulation violates the Free Speech clause of the 1st Amendment “insofar as it forces New Hope to change the content of its message” and to affirmatively recommend same-sex couples to be adoptive parents, in effect imposing an “unconstitutional condition” on New Hope.  The essence of the analysis is that designating New Hope an “authorized agency” for this purpose is delegating a governmental function to New Hope, and any speech in which New Hope engages to carry out that function is essentially governmental speech, not New Hope’s private speech as a religious entity.  “Therefore,” she wrote, “OCFS is permitted to ‘take legitimate and appropriate steps to ensure that its message,’ that adoption and foster care services are provided to all New Yorkers consistent with anti-discrimination policy set forth” in the regulation, “was and is ‘neither garbled nor distorted by New Hope.’”  She concludes that “OCFS is not prohibiting New Hope’s ongoing ministry in any way or compelling it to change the message it wishes to convey.  New Hope is not being forced to state that it approves of non-married or same sex couples.  Rather, the only statement being made by approving such couples as adoptive parents is that they satisfy the criteria set forth by the state, without regard to any views as to the marital status or sexual orientation of the couple.”

The court similarly dismissed New Hope’s claim that applying the regulation violated its right of expressive association, rejecting New Hope’s argument that this case is controlled by the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the court found that the BSA had a 1st Amendment right to dismiss an out gay man from the position of Assistant Scoutmaster, based on the determination by 5 members of the Court that requiring the BSA to allow James Dale to serve would be a form of compelled endorsement of homosexuality.  The Court deemed the BSA an expressive association that had a right to determine its organizational message.  By contrast, found Judge D’Agostino, “New Hope has not alleged facts demonstrating a similar harm that providing adoption services to unmarried or same sex couples would cause to their organization.  New Hope is not being required to hire employees that do not share their same religious values,” she wrote.  “They are not prohibited in any way from continuing to voice their religious ideals.”  And even if the regulation worked “a significant impairment on New Hope’s association rights,” she continued, “the state’s compelling interest in prohibition the discrimination at issue here far exceeds any harm to New Hope’s expressive association.”

The court also found no merit to New Hope’s Equal Protection claim based on a spurious charge of selective enforcement, finding no indication that OCFS was allowing other, non-religious agencies to discriminate while cracking down on New Hope.  As to the “unconstitutional conditions” cause of action, the judge wrote that the court “views New Hope’s unconstitutional conditions claim as a mere repackaging of its various First Amendment claims and, therefore, the Court similarly repackages its resolution of those claims.”

Consequently, the court denied the motion for preliminary injunction, and granted OCFS’s motion to dismiss the case.  ADF will undoubtedly seek to appeal this ruling to the 2nd Circuit.

Federal Court Blocks Discharges of Healthy Airmen Living with HIV

Posted on: February 18th, 2019 by Art Leonard No Comments

U.S. District Judge Leonie M. Brinkema refused to dismiss a lawsuit challenging the Air Force’s refusal to allow healthy Airmen living with HIV to deploy to combat zones and continue serving, and issued a preliminary injunction blocking discharges pending a final ruling on the merits in a pending lawsuit.  Brinkema’s February 15 ruling in Roe v. Shanahan, 2019 U.S. Dist. LEXIS 25419, 2019 WL 643971 (E.D. Va.), found that the plaintiffs – two Airmen living with HIV and OutServe-SLDN, an organization for LGBT servicemembers and veterans representing other service members living with HIV – have “made a strong preliminary showing that the deployment policy applied to asymptomatic HIV-positive servicemenbers cannot withstand rational basis review.”

 

Soon after Donald Trump took office and James Mattis became Secretary of Defense, it became clear that the Pentagon was going to reverse course and systematically dismiss uniformed personnel who were living with HIV, regardless of the state of their health.  Although a literal interpretation of Defense Department regulations would suggest that those who are thriving on anti-retroviral regimens should be able to serve virtually without limitation, the new regime in the Defense Department hierarchy began rendering seemingly inexplicable decisions, determined to discharge highly functioning personnel.  Although this reason was not openly advanced by the defendants or alluded to by the judge, one suspects that the decision may well have been motivated, at least in part, by a desire to avoid the costs of providing expensive medications to the servicemembers involved.

 

The cases of the two plaintiffs, proceeding anonymously as Richard Roe and Victor Voe, well illustrate the bizarre situation.  Both men enlisted in the Air Force during President Barack Obama’s first term, after the “Don’t Ask, Don’t Tell” policy had been repealed.  Both had very successful careers until they were diagnosed as HIV-positive in 2017.  Although both men, complaint with their treatment regimen, have undetectable viral loads and no measurable impairments, their careers have been side-lined and their hopes for promotions and overseas deployments stymied.

 

Both men had been deployed overseas prior to their diagnosis.  The military screens all active-duty personnel periodically for HIV, and will not enlist HIV-positive individuals, so it is clear that both men contracted HIV while in the service.  Despite the strongly positive recommendations of their commanders and colleagues, the Pentagon’s internal review process has rejected their attempts to remain in the service and both were scheduled for discharge.  But Judge Brinkema’s preliminary injunction will keep them in the service while this case plays out, and depending on compliance with her preliminary injunction, these highly trained individuals should be treated as available for overseas deployment.

 

The Defense Department’s motion to dismiss the case focused on three arguments. First, they claimed that the plaintiffs had failed to exhaust administrative remedies because, despite encountering a categorical refusal at multiple levels of internal decision-making, they decided not to appeal once more to the Air Force Board for the Correction of Military Records (AFBCMR), which would be futile under the circumstances.

 

Judge Brinkema rejected defendants’ suggestion that this required dismissal of the lawsuit.  “Roe and Voe did not seek judicial review without having given the Air Force a meaningful opportunity to examine its policies and decisions,” she wrote.  “To the contrary, they presented their claims to a complex, tiered administrative review process – one that involved medical evaluations, written submissions, and formal hearings – culminating in an extensive administrative record and final written decisions by the [Secretary of the Air Force Personnel Council],” which was “acting on the authority delegated by the Secretary of the Air Force.”  The AFBCMR would not have authority to issue a binding recommendation in any event, and its recommendation would go to the very Secretary of the Air Force on whose authority the plaintiffs’ appeals had been denied.

 

Secondly, the Defense Department argued that its personnel decisions based on medical concerns are “altogether immune from judicial scrutiny,” effectively the same argument the government has been making in defense of Trump’s ban on transgender military service.  Judge Brinkema pointed out that military personnel decisions are not wholly free from judicial scrutiny, and that under precedents of the 4th Circuit Court of Appeals binding on her, she found that the factors to be considered tipped in favor of allowing the case to continue, particularly since “at this preliminary stage, [the plaintiffs] have made a strong showing that defendants’ policies are irrational, based on a flawed understanding of HIV epidemiology, and inconsistently applied.”  She also noted that with OutServe-SLDN as a co-plaintiff representing a class of similarly situated HIV-positive personnel facing unjustified discharges, “the far-reaching nature of these claims surely counsels in favor of judicial review.”

 

Finally, the Defense Department argued that the individual plaintiffs lack standing because they have not actually been discharged.  “Defendants’ argument that plaintiffs lack standing is, as is often the case, a matter of characterization,” wrote Brinkema.  “In their view, the Article III injury on which plaintiffs rely is that ‘they have been prevented from continuing to serve in the Air Force.’” Because their terms of enlistment had expired during this dispute, in some sense, the case could be characterized as being about their ability to re-enlist.  But their terms of service had been extended while the lawsuit is pending.  The defendants argued that because there is no guaranteed right to re-enlist, the plaintiffs have suffered no injury if they leave the military at the end of their extensions of service.  However, the judge observed, “Plaintiffs label this argument a ‘Catch-22,’ arguing that Roe’s and Voe’s ‘terms have expired only because Defendants’ illegal policies forced them into the medical discharge process and prevented them from reenlisting.”

 

Furthermore, Brinkema wrote, because their terms of service were extended, a “favorable decision would be likely to remedy their injury” and, furthermore, OutServe, representing numerous HIV-positive service members, continues to have associational standing on behalf of those members who are at various stages of their terms of enlistment.  Thus, she rejected all three arguments and denied the dismissal motion.

 

As to the preliminary injunction motion, expert medical testimony submitted in support of the motion convinced Brinkema that plaintiffs are likely to win their claim on the merits that the defendants’ approach to the issue runs afoul of the 5th Amendment and the Administrative Procedure Act (APA).  Even though, in the context of a challenge to the military policy, she found that it is likely that the case will have to be decided using the lowest level of judicial scrutiny – rational basis review – the way the Air Force is implementing its policies as described in the Complaint would fail to meet even that test.  “At least at this stage,” she wrote, “plaintiffs have made a strong and clear showing that defendants’ policies are irrational, outdated, and unnecessary and their decisions arbitrary, unreasoned, and inconsistent.”

 

In essence, the Defense Department has been proceeding as if treatment for HIV-infection were still mired in the futility of the 1980s, when HIV infection usually led to severe debility and death.  The decision to discharge Roe and Voe was based on their classification as “non-deployable,” which in turn was based on the mischaracterization of their health as presenting unacceptable risks to themselves and others were they deployed overseas.  Under inflexible regulations, people living with HIV cannot be deployed without a “waiver” of the general restriction on deploying personnel overseas who have serious medical conditions, and the record before Judge Brinkema includes a statement by the official in charge of the “waiver” process that they would never issue a waiver for somebody living with HIV.

 

Judge Brinkema’s opinion takes a deep dive into the medical testimony, and concludes that the Air Force’s application of its regulations is inconsistent with the facts.  “To be sure,” she wrote, “HIV remains incurable, and Roe and Voe must take daily medication to ensure that their viral loads remain suppressed.  But that fact does not justify the categorical prohibition at issue here.  Although HIV-positive individuals who suddenly stop antiretroviral treatment are vulnerable to ‘viral rebound,’ appreciable physical effects are not immediate.”  According to the expert testimony in the record, it “often takes weeks for an individual’s viral load to return to clinically significant levels, and even then, the virus enters a period of clinical latency that can last years, often with no symptoms of negative health outcomes.  What is more,” she continued, “plaintiffs have identified several serious medical conditions treated with daily medication that do not subject servicemembers to the same categorical denial of deployability.”

 

She found that “there appears to be no reason why asymptomatic HIV is singled out for treatment so different from that given to other chronic conditions, all of which are subject to worsening upon disruption of daily medication.”  She also noted the latest evidence that those with undetectable viral load “cannot transmit the virus to another,” obviating the Defense Department’s argument that deployed troops must be able to source blood transfusions.  Roe and Voe’s “risk of transmitting HIV during military service remains vanishingly low,” she observed, pointing out that “Defendants have not identified a single recorded case of accidental transmission of HIV on the battlefield, which is unsurprising given the uncontroverted evidence that even without effective treatment, the risk of transmission through non-intimate contact such as blood splash is negligible.”

 

The judge also found that the defendants had totally failed to counter the plaintiffs’ expert medical evidence.  They cited a report to Congress that asserted that “HIV infection has the potential to undermine a Service member’s medical fitness and the readiness of the force,” but she found that this was just a summary of the Defense Department’s policy position: “It contains no evidence, whether anecdotal or otherwise, of the effect of HIV on a servicemember’s medical fitness or the military’s readiness.”

 

“In sum,” wrote Brinkema, “While plaintiffs have presented considerable evidence in support of their arguments, defendants rely on little more than ipse dixit.” Thus, she found, the defendants’ position on deployability was not supported.

 

As to the discharge decisions themselves, the court found the argument that these men were evaluated on a “case by case” basis and found to be non-deployable mandating discharge, to be unsupported as well.  She wrote that “the evidence in this record clearly establishes that HIV seropositivity alone is not inconsistent with ongoing military service, does not seriously jeopardize the health or safety of the servicemember or his companions in the service, and does not impose unreasonable burdens on the military when compared to similar chronic conditions.”  Both men’s commanding officers recommended retention, which even the Secretary of the Air’s Force’s Council recognized in its opinion on their appeals.  But the Council’s decision failed to make an assessment that had any relationship to the individual situations of these men.

 

This, Brinkema found, makes the discharge decisions “contrary to the APA” for two reasons. First, reliance on the nondeployability policy for HIV-positive service members is not based on an individualized assessment, but rather a categorical ban, which “renders the decision to discharge them arbitrary and capricious.”  Due to the lack of any relationship to a legitimate interest of the military, the Council “violated agency policy mandating that HIV status alone is not a permissible ground for separation.  A decision in direct conflict with the agency’s own standards, and one based on a failure to consider key aspects of the problem, cannot stand under the APA.”

 

Further, she found that the other factors relevant to awarding preliminary relief were all present.  The men’s military careers would be irreparably damaged by an unjustified discharge, which would also deprive them of continued coverage of military health care. The Defense Department argued that an improper discharge could be remedied after the fact by an award of damages, but Brinkema strongly rejected the idea.  “Roe and Voe, along with other similarly situated HIV-positive servicemembers, face a particularly heinous brand of discharge, one based on an irrational application of outmoded policies related to a disease surrounding which there is widespread fear, hostility, and misinformation,” she wrote.  “In their cases, the ‘stigma of being removed from active duty and being labeled as unfit for service’ is coupled with the indignity suffered because the reason for their discharges bears no relationship to their ‘ability to perform their jobs.’”

 

Furthermore, the reason for a military discharge can have secondary consequences, forcing the individuals to “real their condition,” thus subjecting them to discrimination in civilian life as well.  “This is precisely the type of harm that back pay or reinstatement cannot remedy and for which status quo-preserving preliminary relief is designed.”  The judge found that the remaining equitable factors also cut in favor of plaintiffs, and especially the public interest.  She found that these men, dedicated to service with excellent records, were rendering valuable public service that would be interrupted or ended if she did not issue the preliminary injunction.

 

Because her analysis of the case focused specifically on the practice of the Air Force, Judge Brinkema did not grant plaintiffs’ request to make her injunction apply to the entire Defense Department, but on the other hand she rejected the government’s request that it apply only to Roe and Voe and not to the other similarly situated Air Force personnel.

 

Lambda Legal joined with OutServe-SLDN to represent the plaintiffs.  Appearing in the district court were cooperating pro bono attorneys from the Washington office of Winston & Strawn LLP, Laura Joy Cooley and Andrew Ryan Sommer.

Federal Court Orders Wisconsin to Cover Transition Medical Costs for Transgender State Employees

Posted on: September 25th, 2018 by Art Leonard No Comments

U.S. District Judge William M. Conley ruled on September 18 in Boyden v. Conlin, 2018 WL 4473347, 2018 U.S. Dist. LEXIS 158491 (W.D. Wis.), that Wisconsin’s refusal to cover “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” for its transgender state employees violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 and in the Affordable Care Act, as well as the Equal Protection Clause of the 14th Amendment.  Conley had previously awarded a preliminary injunction to transgender Medicaid participants in Wisconsin who were seeking similar coverage under that program, having concluded that they were likely to prevail on the merits of their claims. See Flack v. Wisconsin Department of Health Services, 2018 WL 3574875 (W.D. Wis., July 25, 2018). In this new decision, Judge Conley was ruling on motions for summary judgment by the plaintiffs and the defendants, so this is a final ruling on liability, although there may be a trial on damages if the state doesn’t settle the case.

A Wisconsin statute mandates the state to provide insurance coverage to “aid public employees in protecting themselves against the financial hardships of illness, thereby promoting economy and efficiency in public service by facilitating the attraction and retention of competent employees, by enhancing employee morale and by establishing equitable benefit standards through public employment.” A Government Insurance Board (referred to as GIB) adopts “Uniform Benefits” for the state’s Group Health Insurance Plan, which then contracts with private insurance companies to provide the mandated benefits to state employees.  Employees and their government employers pay money into an Employee Trust Fund (ETF) to finance the benefits.

The exclusion of coverage for hormones and surgery for gender transition has been part of the “Uniform Benefits” standard in Wisconsin in some form since 1994, when GIB adopted the exclusionary language, explaining that such benefits and services were generally deemed by insurance companies to be “experimental and not medically necessary.” The defendants claim that the exclusion of coverage is not total — that hormone treatment for gender dysphoria is covered “unless specifically made a course of treatment leading to or involving gender conforming surgery,” but there is some dispute about how this is interpreted and applied in practice.

“Still,” wrote Conley, “there is no dispute that mental health counseling as a stand-alone treatment for gender dysphoria is covered, whereas hormone therapy involving gender reassignment surgery is not covered; and there is no dispute that the surgery itself is not covered.” Furthermore, the “Uniform Benefits” also excludes from coverage “treatment, services, and supplies for cosmetic purposes,” with the explanation that “psychological reasons do not represent a medical/surgical necessity.”

During the Obama Administration, it appeared as if GIB might change its position, as the Department of Health and Human Services (HHS) was taking the position that the Affordable Care Act’s ban on sex discrimination in insurance benefits would include gender identity discrimination, but the guidance HHS put out stopped short of stating this meant the gender-confirming surgery must be covered. There seemed a possibility that GIB would authorizes changes for the plan year beginning January 1, 2017, but the state’s Republican administration was pressing GIB to find economies rather than expanding existing benefits.

The ETF staff at first recommended that the exclusion be removed, based on the possibility that the ACA would require coverage, and at its July 12, 2016, meeting, GIB voted unanimously to amend the uniform benefits to remove the exclusion effective January 1, 2017. But GIB subsequently reconsidered that decision at the request of the Governor’s Office, and on December 29, 2016, voted to reinstate the Exclusion if four contingencies were satisfied.  A Deputy Attorney General had sent GIB a memo arguing that the federal HHS rules interpreting the ACA to cover gender identity discrimination were “unlawful,” a position that a group of states including Wisconsin had taken in a lawsuit filed in the federal district court for the Northern District of Texas.  Subsequently, the federal district judge there issued a nationwide injunction, blocking HHS from enforcing its gender identity discrimination policy.

Also, of course, after Donald Trump was elected in November 2016, bringing in Republican majorities in both houses of Congress, Republican leaders announced their goal of repealing the ACA, so it appeared likely that the exclusion might not need to be lifted to comply with that law.

At a GIB meeting on December 13, 2016, an attorney from the Wisconsin Department of Justice recommended that “the Board follow the law as it currently stands,” noting that Wisconsin was a plaintiff in the Texas lawsuit. Ultimately, one of the contingencies that GIB embraced for rescinding their prior decision on December 30 would be the federal court in Texas issuing its injunction, the other contingencies being compliance with Wisconsin statutes, renegotiation of contracts with insurance companies that maintained or reduced premium costs, and receiving an opinion from the state’s lawyers that “the action taken does not constitute a breach of board members’ fiduciary duties.”  In January 2017, the administrators concluded that the contingencies justifying rescinding the prior vote had been met.

For Judge Conley, however, this political by-play was essentially irrelevant to his ruling on the claims by the plaintiffs, transgender state employees whose federal statutory and constitutional rights were being violated. He focused on the reasons articulated by GIB members for their votes, which varied from person to person.  Some were concerned about the Texas court’s preliminary conclusion that the Obama Administration’s interpretation of ACA was unlawful.  There was some discussion of costs, but nobody would testify that specific numbers were discussed by GIB, and several members testified that there was no discussion about the medical necessity or safety of the transition procedures, although in this litigation the state presented “expert testimony” (which Judge Conley found deficient) questioning both of those issues.

One GIB member testified that he voted to remove the exclusion because he “viewed the exclusion as discriminatory and supports the right of transgender individual to get the healthcare they need” and that “it’s not costly to add it to the group plan.” This proved to be an apt prediction of what Judge Conley ultimately found, based on the testimony of experts on behalf of the plaintiffs.

Wisconsin is within the 7th Circuit Court of Appeals’ jurisdiction.  The 7th Circuit’s rulings are binding on Judge Conley’s District Court in Madison, the state capital.  And, he found, the 7th Circuit has emerged as a champion of LGBT rights with its 2017 decisions in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), and Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).  In Hively, the appeals court held that discrimination because of sexual orientation is prohibited by Title VII’s ban on sex discrimination in employment.  In Whitaker, the court ruled that discrimination because of gender identity is prohibited by Title IX’s ban on sex discrimination in public schools.  Putting them together, Conley found it easy to conclude that gender identity discrimination violates Title VII as well, despite an old 7th Circuit decision, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984),  ruling out such claims, which has never been explicitly overruled by the circuit court.

He wrote that “all individuals, whether transgender or cisgender, have their own understanding of what it means to be a woman or a man, and the degree to which one’s physical, sexual characteristics need to align with their identity. For example, a cisgender woman who has a mastectomy for treatment of breast cancer may opt not to have reconstructive surgery.  That choice, however, may be untenable to another cisgender woman placed in the same position.  Similarly, a transgender woman may require breast augmentation to address her gender dysphoria, whereas another transgender woman may not.  Nothing about offering coverage without regard to one’s natal sex forces individuals to have surgery to conform their physical traits to their identified gender.  Instead,” he wrote, “the Exclusion implicates sex stereotyping by limiting the availability of medical transitioning, if not rendering it economically infeasible, thus requiring transgender individuals to maintain the physical characteristics of their natal sex.  In other words, the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.  In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”

In other words, this judge really “gets it.” The opinion exhibits a profound understanding of why this challenged Exclusion is really a form of sex discrimination, which is outlawed by the relevant statutes.  Furthermore, since it is sex discrimination in a government policy, it is subject to “heightened scrutiny” under the Equal Protection Clause, throwing the burden on the government to show that the policy substantially advances important state interests.  And, as to that, Judge Conley found that the evidence presented by the state as to its purported reasons for rejecting ETF’s recommendation falls short.

“Not only is the record devoid of any evidence to show that GIB members voted as they did for cost or efficacy reasons,” he wrote, “the evidence is overwhelming that the actual or genuine reason for the reinstatement [of the Exclusion] had to do with the DOJ’s guidance – specifically, the belief that the Texas court’s entry of an injunction absolved defendants of any legal obligation to provide coverage.” But, confusingly, the defendants did not put this forward as their reason in support of their motion for summary judgment, instead pointing to costs and efficacy, as to which their expert’s supporting testimony was woefully deficient.  Indeed, Judge Conley questioned whether he actually qualified as an “expert” at all.  “Accordingly,” he wrote, “the court concludes that the Exclusion does not survive heightened scrutiny,” and thus is unconstitutional.

While Judge Conley concluded that the individual named government defendants who were sued in their official capacity were entitled to qualified immunity against personal liability, since thus far there is no 7th Circuit or Supreme Court precedent holding that the exclusion is unconstitutional, this is no bar to equitable and monetary relief for the plaintiffs against the state agencies who made the challenged decisions.

This doesn’t conclude the case before Judge Conley. In the final part of his opinion, titled “Trial Plan,” he laid out the various claims for relief that plaintiffs can pursue at trial, having won a summary judgment that the Exclusion violates their statutory and constitutional rights.  “While the court will determine any equitable relief at trial, as well as award of attorneys’ fees and costs,” he wrote, “defendants have demanded a jury trial as to plaintiffs’ claims for compensatory and/or punitive damages, which is their right.  And so a jury there shall be.”  The court scheduled a pretrial conference for the last week in September.

The role of the jury in such a case is to determine that amount of money to which the plaintiffs are entitled for the violation of their rights. The state is undoubtedly counting on a jury of taxpayers to be revolted by the thought of awarding substantial sums to transgender plaintiffs, but they should not be so confident, as public opinion has been swinging behind the transgender rights movement. The judge will determine appropriate attorneys’ fees and costs to award to plaintiffs as the prevailing parties on the merits of their claims.

On September 24, Judge Conley issued an Opinion and Order setting a trial date on damages of October 9, 2018, and ruling on motions in limine and related motions.  Most notably, he found moot a motion to exclude testimony by the defendants’ experts, inasmuch as their testimony went to the issues of cost and efficacy, which were no longer in play as a result of the grant of summary judgment on the merits to plaintiffs. See 2018 U.S. Dist. LEXIS 162757.

Plaintiffs Alina Boyden and Shannon Andrews are represented by John Anthony Knight of the ACLU Foundation, Chicago, Laurence J. Dupuis, of the ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, and local counsel Michael Godbe and Nicholas E. Fairweather, of Hawks Quindel, S.C., Madison, WI.

7th Circuit Ruling Creates Federal Precedent to Protect Older Gays in Residential Facilities

Posted on: August 27th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on August 27 that a lesbian resident of a rental facility for seniors in Illinois may seek to hold the management of the facility accountable for severe harassment against her by other residents due to her sexual orientation.  The ruling reversed a decision by U.S. District Judge Samuel Der-Yeghiayan, a George W. Bush appointee, to dismiss her case.  The court of appeals decision marks an important appellate precedent for the protection of older LGBT people living in residential facilities.  The case is Wetzel v Glen St. Andrew Living Community, LLC, Case No. 17-1322 (7th Cir., Aug. 27, 2018).

Marsha Wetzel moved into Glen St. Andrew Living Community after her partner of 30 years died. Under the Tenant’s Agreement she signed with the facility, she is entitled to a private apartment, three meals daily served in a central location, access to a community room, and use of laundry facilities.  The agreement requires her (and all other tenants under their agreements) to refrain from “activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of the community by other tenants” or that is “a direct threat to the health and safety of other individuals.”  The Agreement also authorizes the facility to bring eviction proceedings against a tenant who violates the Agreement.

Wetzel was not closeted, speaking openly with staff and other residents about her sexual orientation when she moved in. “She was met with intolerance from many of them,” wrote Chief Judge Diane Wood in summarizing the allegations in Wetzel’s Complaint.  For purposes of ruling on the facility’s motion to dismiss her case, the court’s role is to accept Wetzel’s allegations as true and to decide whether those allegations, if proved at trial, would constitute a violation of her rights under the Fair Housing Act, which forbids discrimination because of sex.

Judge Wood’s summary of the Complaint makes horrific reading. “Beginning a few months after Wetzel moved to St. Andrew and continuing at least until she filed this suit (a 15-month period), residents repeatedly berated her for being a ‘fucking dyke,’ ‘fucking faggot,’ and ‘homosexual bitch.’  One resident, Robert Herr, told Wetzel that he reveled in the memory of the Orlando massacre at the Pulse nightclub, derided Wetzel’s son for being a ‘homosexual-raised faggot,’ and threatened to ‘rip [Wetzel’s] tits off.’  Herr was the primary, but not sole, culprit.  Elizabeth Rivera told Wetzel that ‘homosexuals will burn in hell.’”

The Complaint also describes incidents of physical abuse, focused on knocking Wetzel off the motorized scooter she depends upon to get around, spitting at her, and striking her from behind accompanied by anti-gay epithets.

When she complained to the staff, there was a “brief respite,” but soon the misconduct continued. Indeed, Judge Wood wrote, “the management defendants otherwise were apathetic.  They told Wetzel not to worry about the harassment, dismissed the conduct as accidental, denied Wetzel’s accounts, and branded her a liar.”  Furthermore, Wetzel alleges, they retaliated against her by relegating her “to a less desirable dining room location” after she notified them about one incident of physical harassment by another resident, “barred her from the lobby except to get coffee” and “halted her cleaning services, thus depriving her of access to areas specifically protected in the Agreement.”  They also false accused her of smoking in her room and one St. Andrews worker “slapped her across the face” when she denied having violated the no-smoking rule.

In what sounds like a transparent attempt to set her up for an eviction for non-payment, they failed to send her the customary rent-due notice sent to all tenants, but she remembered to pay on time, “but she had to pry a receipt from management.”

As a result of these management responses, Wetzel sharply curtailed her activities outside her room, staying away from common spaces including the dining room, and finally, fed up with this mistreatment, filed this lawsuit, alleging violations of the FHA as well as state laws. (Illinois laws forbid sexual orientation discrimination in housing and public accommodations.)

The facility did not argue in defense that the FHA does not ban sexual orientation discrimination. They could hardly raise such an argument in the 7th Circuit, because that court was the first appellate court to rule that sexual orientation claims are a subset of sex discrimination claims, under the similar anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.

Instead, the defendant argued that the landlord cannot be held liable for discrimination by other tenants under the FHA without a showing of discriminatory animus by the landlord. Furthermore, it argued that FHA deals with refusals to rent, and does not cover “post-acquisition harassment claims.”  In other words, as Judge Wood explained, once an apartment has been rented, the defendant argued that the FHA is no longer relevant to claims brought by “a tenant already occupying her home.”  The defendant countered Wetzel’s retaliation claim by arguing, once again, that it lacked an allegation that defendants were motivated by discriminatory animus.

District Judge Der-Yeghiayan agreed with the defendants’ FHA arguments and dismissed the case. The dismissal of the FHA claim removed the basis for federal jurisdiction, and the judge declined to keep the state claims alive, dismissing them for lack of jurisdiction, although federal courts do have discretion to continue to consider state law claims in such cases.

Writing for the appeals court, Judge Wood relied on cases of workplace harassment decided under Title VII for a standard to apply to a harassment case brought under the FHA, for which there was no precedent in the 7th Circuit.  “The harassment Wetzel describes plausibly can be viewed as both severe and pervasive,” she wrote, referring to the Title VII standard.  “For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence, and spit.  The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s].’  A jury would be entitled to see the story otherwise.”

The question for the court was whether there was a basis to impute liability to St. Andrew for the hostile housing environment, a question new for the 7th Circuit.  Again, the court borrowed from principles established under another statute, this time focusing more on Title IX of the Education Amendments Act, under which schools have been held liable for harassment of students by other students, when the harassment was brought to the attention of school authorities and they failed to take appropriate steps to assure that the harassed students were not denied equal educational opportunity because of their sex.

The question was whether the facility management had “actual knowledge of the severe harassment Wetzel was enduring and whether they were deliberately indifferent to it. If so,” wrote the judge, “they subjected Wetzel to conduct that the FHA forbids.”  The court rejected St. Andrew’s argument that the landlord-tenant relationship is so different from the school-student relationship as to make such a test inappropriate.  The court, finding that the defendant had inaccurately described the court’s holding, responded: “We have said only that the duty not to discriminate in housing conditions encompasses the duty not to permit known harassment on protected grounds. The landlord does have responsibility over the common areas of the building, which is where the majority of Wetzel’s harassment took place.  And the incidents within her apartment occurred precisely because the landlord was exercising a right to enter.”

The court rejected St. Andrew’s argument that its ruling would unfairly hold St. Andrew liable for actions it was “incapable of addressing,” pointing out that the tenant Agreement signed by all residents imposed obligations on tenants not to engage in conduct that would constitute a “direct threat to the health and safety of other individuals” and to refrain from conduct that would “unreasonably” interfere with “the peaceful use and enjoyment of the community by other tenants.” This is, on its face, directly applicable to the conduct of other residents directed at Wetzel.  And the Agreement gives the facility the right to seek to evict tenants who violate these rules.  Yet, according to Wetzel’s Complaint, the facility took action against her for complaining rather than against her harassers for their misconduct.

The court also noted a rule published by the Department of Housing and Urban Development (HUD) in 2016, providing that a landlord could be held liable under the FHA for failing to “take prompt action to correct and end a discriminatory housing practice by a third party” (such as a fellow resident in a rental building) if the landlord “knew or should have known of the discriminatory conduct and had the power to correct it.” The court said it did not need to rely on this rule, however, stating that “it is enough for present purposes to say that nothing in the HUD rule standings in the way of recognizing Wetzel’s theory” for landlord liability in her case.

The court also discounted St. Andrew’s argument that this case is just about “bad manners” by some residents. “It is important,” wrote Wood, “to recognize that the facts Wetzel has presented (which we must accept at this stage) go far beyond mere rudeness, all the way to direct physical violence.”  She noted that under Title VII courts have routinely had to distinguish between hostile environment harassment and mere incivility.

The court also decisively rejected St. Andrew’s claim that the FHA anti-discrimination provision does not apply once the apartment is leased to the tenant. The statute bans discrimination regarding “services or facilities,” and the court pointed out that “few ‘services or facilities’ are provided prior to the point of sale or rental; far more attach to a resident’s occupancy.”  In this case, Wetzel’s allegations included her virtual exclusion from the enjoyment of the common areas of the building, and denial of certain services to which she was entitled under the tenant Agreement.  “At a minimum, then,” wrote the court, “Wetzel has a cognizable post-acquisition claim because discrimination affected the provision of services and facilities connected to her rental.  Beyond that, the discrimination diminished the privileges of Wetzel’s rental.”

The court also rejected St. Andrew’s argument, which the district court had accepted, that the anti-retaliation provision of the statute required proof of the landlord’s discriminatory intent. “Indeed,” wrote Judge Wood, “if we were to read the FHA’s anti-retaliation provision to require that a plaintiff allege discriminatory animus, it would be an anomaly.  Like all anti-retaliation provisions, it provides protections not because of who people are, but because of what they do.”  The focus, thus, is on whether the landlord takes some adverse action after a tenant complains about violation of her rights under the FHA, not whether the landlord is biased against somebody because she is a lesbian.

In sending the case back to the district court, the Court of Appeals revived Wetzel’s FHA claim and also directed to the court to “reinstate the state-law claims that were dismissed for want of jurisdiction.”

Wetzel is represented by Lambda Legal and cooperating attorneys from Foley & Lardner LLP.

Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

Posted on: May 7th, 2018 by Art Leonard No Comments

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.

New Court Ruling Shows What May Be Lost Due to Trump/Pence Election

Posted on: November 17th, 2016 by Art Leonard No Comments

A November 4 ruling in a sexual orientation discrimination case that was brought by the Equal Employment Opportunity Commission (EEOC) shows that progress on LGBTS rights may be lost as a result of the election of Donald Trump and Mike Pence. The ruling in EEOC v. Scott Medical Health Center, 2016 U.S. Dist. LEXIS 153744, 2016 WL 6569233 (W.D. Pa.), was issued by U.S. District Judge Cathy Bissoon, who was nominated to the federal district court in Pittsburgh by President Obama in 2010 and confirmed by the Senate in October 2011 by a vote of 82-3.  The judge, a Brooklyn native, was reportedly the first woman of Indian descent to sit as a federal judge when she took her previous position as a U.S. Magistrate Judge in 2008. In this ruling, the judge held that Title VII may be used to protect gay people from sexual orientation discrimination.

In this case, Dale Baxley was hired in mid-July 2013 by Scott Medical Health Center in a telemarketing position. He claims that he was subjected by his manager, Robert McClendon, to “a continuing course of unwelcome and offensive harassment because of his sex” that created a hostile work environment.  According to the Complaint filed in the district court, McClendon “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’”  The Complaint also alleges that after McClendon found out that Baxley is gay and had a same-sex partner, he “made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”  Baxley was gone from the job after about a month of McClendon’s verbal abuse, a victim – he claims – of “constructive discharge.”  That is, his working conditions were so miserable that he was compelled to quit.

Ironically, the EEOC’s lawsuit on behalf of Baxley resulted not from a charge he filed but from the agency’s investigation of discrimination charges filed with the Pittsburgh office by five of Baxley’s former female co-workers. These women alleged that they were subjected to sexual harassment by McClendon, including “unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.”  While investigating these charges, the agency learned about McClendon’s treatment of Baxley and Baxley’s claim that he had been constructively discharged.

At the end of the investigation, the EEOC issued a “Letter of Determination” to Scott Medical Health Center stating that the investigation “also revealed that McClendon harassed a male employee because of sex, specifically and repeatedly referring to the male employee as a ‘faggot,’ and repeatedly asking about the employee’s sexual experiences and preferences. The investigation revealed that McClendon targeted this male employee because he did not conform to what McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex.”  The letter concluded that McClendon’s conduct created a hostile environment resulting in the constructive discharge of Baxley.  The EEOC attempted unsuccessfully to achieve a conciliation agreement with the employer, then filed this lawsuit.

This was the first lawsuit that the EEOC filed on behalf of a gay former employee alleging that his discharge was “because of sex” in violation of Title VII of the Civil Rights Act of 1964. In July 2015, the agency had reversed its position of half a century when it ruled in Baldwin v. Foxx that the U.S. Transportation Department may have violated Title VII when it denied a promotion to a gay air traffic controller.  After accepting the view that sexual orientation claims can be asserted under Title VII, the agency was on the lookout for appropriate private sector cases to bring, in order to vindicate a public policy against such discrimination as well as seeking a remedy for the employee involved.  The agency was seeking to establish court precedents that would lock its interpretation into the case law.  Prior to this case filing, all of the Title VII sexual orientation claims presented to federal courts had been lawsuits filed by individual discrimination victims, not by the federal agency.

The Health Center asked the court to dismiss the EEOC’s complaint, arguing that Title VII does not prohibit discrimination based on sexual orientation, citing two precedents from the U.S. Court of Appeals for the 3rd Circuit, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009), in support of that argument.  But Judge Bissoon found that in those prior decisions, the court of appeals had not been presented with all the arguments that the EEOC has developed in support of its 2015 change of position on this issue, and more recent events have undermined the earlier rulings, so she concluded that those rulings – by the court with direct appellate authority over district court decisions from Pennsylvania – did not compel dismissal of this complaint.

The EEOC advanced three lines of argument in support of its position. First, that Baxley was “targeted because he is a male, for had he been female instead of a male, he would not have been subjected to discrimination for his intimate relationships with men.”  Second, the he was “targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes Baxley’s sex into account.”  And, third, that he was “targeted because he did not conform to his harasser’s concepts of what a man should be or do.”  This last argument is a version of the “sex stereotype” theory that the Supreme Court approved in 1989 in Price Waterhouse v. Hopkins.

Judge Bissoon said that the EEOC’s three arguments were actually just one argument stated three different ways, “with the singular question being whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”

For purposes of ruling on a motion to dismiss a claim, the court assumes that the plaintiff’s factual allegations are true, and asks whether, based on those facts, the plaintiff has a plausible legal claim. Thus, Judge Bissoon was ruling, if the EEOC can prove these factual allegations, it will win the case.

Judge Bissoon held, straightforwardly, that “Title VII’s ‘because of sex’ provision forbids discrimination on the basis of sexual orientation.” This statement directly contradicts the two prior 3rd Circuit rulings, but Judge Bissoon found that it was consistent with how the law had developed under Title VII, dating back as early as 1983 when the Supreme Court began “broadening” its interpretation of sex discrimination in a series of cases culminating with Price Waterhouse in 1989.  She also noted that at least one federal appeals court, the Cincinnati-based 6th Circuit, has already used the sex stereotyping theory to extend protection to a transgender plaintiff.

As the EEOC has done, Judge Bissoon quoted Justice Scalia’s statement in the Supreme Court’s 1998 same-sex harassment case, Oncale v. Sundowner Offshore Services, that “statutory prohibitions often go beyond the principal evil [that Congress intended to address] 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.” Thus, the lack of any evidence that Congress intended to prohibit sexual orientation discrimination in 1964 does not require rejecting a sexual orientation discrimination claim in 2016.

Referring back to Price Waterhouse, the judge wrote, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘discrimination against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about “proper” roles in sexual relationships – that men are and should only be sexually attracted to women, not men.’  This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse.  Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

And the judge found that this argument was not presenting in its fully developed form to the 3rd Circuit in its earlier cases, so it had not been specifically rejected by that court.  In its earlier cases, furthermore, the 3rd Circuit panels had relied on the failure of Congress to pass the Employment Non-Discrimination Act as evidence that Congress did not intend to protect gay people from discrimination.  “However,” she wrote, “subsequent Third Circuit decisions have questioned the value of reliance on Congress inaction.”  Furthermore, she pointed out, many of the cases relied upon in those earlier 3rd Circuit decisions had in turned relied upon circuit court cases that pre-dated Price Waterhouse, and so necessarily had not ruled on the sex stereotype theory.

“The Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation,” wrote the judge. “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.” Thus, the court denied the employer’s motion to dismiss the Title VII complaint.

If the employer appeals this case to the 3rd Circuit, it will be reaching an appellate bench with seven Democratic appointees (by Presidents Clinton and Obama) and five Republican appointees (by Presidents Bush I and II).  There are two vacancies.  There are nine active senior judges of the circuit, mostly appointed by Republican presidents, who might sit on particular three-judge panels but would not participate in “en banc” reviews by the full circuit bench.   By random draw, any particular three-judge panel might by more or less receptive to Judge Bissoon’s reasoning, although one can’t conclusively presume that every Democratic appointee will agree and every Republican appointee will disagree.  But the point to bear in mind is that Obama, through his appointments, switched the 3rd Circuit from a more conservative to a more progressive bench, and Trump can rebalance the circuit by filling the two vacancies and the next one that comes along if a Clinton or Obama appointee takes senior status.

Similarly, at the EEOC, significant progress in protecting LGBT rights came through administrative rulings and litigation decisions undertaken by President Obama’s appointees. The agency has become a vocal proponent of a broad interpretation of Title VII to protect LGBT people from employment discrimination, and its reasoning has been followed by other agencies, such as the Department of Labor and the Department of Education.   It seems unlikely that Trump’s appointees, once attaining full control of the federal agencies and departments, would keep to the same course.  Indeed, it is not a sure thing that Trump will allow Obama’s executive orders banning sexual orientation and gender identity discrimination within the Executive Branch, to stay in place.  The Order requiring federal contractors to have non-discrimination policies is likely on the repeal list.

Luckily, individuals can continue to file discrimination lawsuits under Title VII, so the loss of the agency as a plaintiff in their cases will not shut them out of court. But preserving the gains made so far may be difficult against the tide of new judicial and agency appointments that will be made beginning January 21.  Stalling on confirmations by the Senate has left close to 100 federal judgeships vacant, and there are hundreds of agency appointments to be made as well, which will cumulatively change the direction in which federal anti-discrimination law has been developing during the Obama years.  The appointment of new Supreme Court justices will matter as well, of course, because ultimately the question whether Title VII and other federal sex discrimination laws protect LGBT people will end up before that Court, where a transgender “bathroom” case under Title IX has already been accepted for review.   If these cases are decided after Trump has had two Supreme Court appointments, it is reasonable to speculate that the newly solidified conservative majority will not be inclined to adopt such a broad interpretation of Title VII or other federal sex discrimination laws.  Elections matter.