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9th Circuit Rejects Parents & Students Lawsuit Against Trans-Friendly Oregon School District

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

A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity.  Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).

The decision was made by a panel comprised entirely of judges appointed by Democratic presidents.  Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.

The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room.  This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.

In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima.  Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”

The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex.  The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.

The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female.  The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”

In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.

The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima.  “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”  They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.

Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.

The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.

The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause.   They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.

Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.”  He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”

He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX.  Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation.  The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation.  These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.

The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents.  “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”

The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds.  The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs.  “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement.  The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.

The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students.  Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.

This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year.  However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step.  If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.

Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court.  In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.

The court received nine amicus briefs, none of which supported the plaintiffs’ position!  The American Civil Liberties was permitted to argue on behalf of the rights of transgender students.  All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights.  The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees.  An expanded panel of eleven would necessarily include some of Trump’s appointees.

 

9th Circuit Denies En Banc Review in Idaho Transgender Prisoner Case in a Sharp Political Divide That Foreshadows Supreme Court Review

Posted on: February 12th, 2020 by Art Leonard No Comments

Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo.  The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights.  On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing.  In the 9th Circuit, an en banc panel would have eleven judges.  Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.

This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition.  This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court.  Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.

The denial of review was by no means unanimous.  It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving.  Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain.  None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition.  Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees.  (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)

It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term.  There are no 9th Circuit vacancies for him to fill at present.

Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges.  In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”

The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment.  The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual.  The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled.  Edmo’s expert witnesses, both involved with devising the most recent edition of the  WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.

Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure.  The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place.  They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.

By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated.  The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.

Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts.  O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context.  He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.

He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.

In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th  Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.”  Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.

O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition.  He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.

He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.

Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year.  Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.

Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today.  Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.

Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.”  “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use.  He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts.  The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.

In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning.  Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.”  For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated.  Thus, this is not “unusual.”  And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession.  They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”

Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community.  Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision.  Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures.  Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.

Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment.  He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation.  “Deliberate indifference” requires a higher showing by the plaintiff.  Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.

Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis.  He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference.  Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”

Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling.  They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference.  Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.