Trump Executive Order Reverses Agency Policies Protecting Transgender Individuals

Yesterday President Trump signed an Executive Order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (full text). The Executive Order seeks to eliminate the recognition of transgender individuals in federal agency policies interpreting antidiscrimination provisions.  The lengthy Executive Order provides in part:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept....

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

 The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities....

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

Suit Challenges Wisconsin Tax Exemption as Violation of State Constitution's Ban on Preference to Religious Establishments

Suit was filed last week in a Wisconsin state trial court by the Freedom from Religion Foundation and three individual property owners challenging a Wisconsin property tax exemption tailored to only benefit two apartment buildings serving students at the University of Wisconsin-Madison. The buildings are owned by the Presbyterian Student Center Foundation and by a Catholic parish. The complaint (full text) in Gaylor v. City of Madison, (WI Cir. Ct., filed 1/14/2025), alleges that the exemption violates the equal protection and uniformity clauses of the Wisconsin state constitution, the state constitution's provision on private bills and the prohibition in Article I, section 18 of the Wisconsin Constitution which prohibits legislation that gives a preference to any religious establishment or mode of worship. Christian Post reports on the lawsuit.

Trump Designates New Acting Chair of EEOC

In one of the first actions taken after he was sworn in as President, Donald Trump designated new Chairmen and Acting Chairmen of 15 federal agencies. Among these was the designation of EEOC Commissioner Andrea R. Lucas to be Acting Chair of the Equal Employment Opportunity Commission. She replaces Charlotte A. Burrows who will remain a member of the Commission. The EEOC adjudicates claims of employment discrimination, including religious discrimination in employment.

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

 From SSRN:

• Evangelos Venizelos, Religious Freedom for Muslims: A Challenge to the Historical Foundations and Resilience of European Constitutionalism, (June 15, 2023).
• Gader Wren, A Continued Sign of the Court’s Unwillingness to Overrule Smith, 7 Nev. L.J. Forum (2023).
• Gader Wren, The Establishment Clause: No Longer a Lemon, (100 U. Det. Mercy L. Rev. Online 1 (2023)).
• Gader Wren, Dobbs: A Powerful Opinion with Discrete Weaknesses, (Idaho Law Review Spotlight, Vol. 2 (2023), Iss. 1, Art. 2).
• Kate Redburn, The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis, (December 18, 2023).
• Natasha Bakht & Lynda Margaret Collins, Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms, (November 21, 2024).
• Carl H. Esbeck, Church Autonomy, Textualism, and Originalism: SCOTUS's Use of History to Give Definition to Church Autonomy Doctrine, (108 Marquette Law Review (forthcoming 2025)).
• Mark Storslee, History and the School Prayer Cases, (110 Va. L. Rev. 1619 (2024)).
• John Witte, Table Talks on Law & Religion, Canopy Forum, 2024 (forthcoming).
• John Witte, “Foreword,” to Walters-Sleyon, The Rush for Black Diamonds, (forthcoming).
• Jeffrey A. Van Detta, Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court, (Belmont University College of Law Research Paper No. 2024-15).

From SSRN (Christian, Jewish, Buddhist and Islamic Law):

• Amit Kumar Ghosh, Tantric Union of Male and Female in Vajrayana, (November 25, 2024).
• Haseeb Fatima Saikhu, Inheritance Rights of Orphaned Grandchildren under Section 4 of Muslim Family Law Ordinance, 1961 and its Alternative Solutions, (Law and Policy Review, Volume 3, No. 2, Pp.21–42 (2024).
• Christopher Hampson, The Spirit of Jubilee, (University of Florida Levin College of Law Research Paper Forthcoming).
• John Witte, The Oxford Handbook of Christianity and Law, (Canopy Forum, 2024).
• Johari, et. al., The Role of Temporary Waqf in Improving the Social Welfare of the Muslim Community (November 26, 2024).
• Ihsan, Hidayatul Ihsan, et. al., Factors Affecting the Motivation of Prospective Waqifs to Endow Insurance in Indonesia, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Hidayatul Ihsan, Firman Surya, Eliyanora & Nurul Hafizah, A Digital Transformation in Waqf Management: Leveraging Microsoft Access for Financial Accountability, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).

National Guard Officer Sues After Dismissal for His Religion-Based Anti-LGBTQ Views

Suit was filed last week in an Idaho federal district court by an Idaho National Guard officer who was removed from a command position that he had just assumed because of his Christian religious views on sexuality that he had expressed during his previous campaigns for mayor and state senator. The complaint (full text) in Worley v. Little, (D ID, filed 1/17/2025), reads in part:

74. The Investigating Officer stated, in his findings, that Major Worley had “well documented discriminatory views against the LGBTQ community” that “suggest an inability to uphold the values of equality, respect, and impartiality expected of a company commander.”...

75.... In addition to his unconstitutional and unconscionable findings as it relates to Major Worley’s religious beliefs, views, expression, and exercise, the Investigating Officer also recommended to Defendants that they institute a “No Christians in Command” Policy. ...

The complaint alleges that this violates plaintiff's free speech, free exercise and equal protection rights.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Cert. Granted on Whether Opt-Out is Required When Parent Objects on Religious Grounds to Public School Curricular Material

Yesterday the U.S. Supreme Court granted review in Mahmoud v. Taylor, (Docket No. 24-297, certiorari granted 1/17/2025). (Order List.) The question presented to the Court in the Petition for Certiorari is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

In the case, the Montgomery County, Maryland Board of Education adopted certain LGBTQ-Inclusive Books as part of a larger array of books for use by English Language Arts teachers. An initial arrangement allowing parents to opt their children out of exposure to these books was ended by the Board.

The U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a free exercise violation occurs only when there is some sort of direct or indirect pressure to change religious beliefs or conduct, and that mere presence in the classroom when these materials may be read does not create that kind of coercion. (See prior posting.) 

CBS News reports on the Court's action.

United Nations Releases Plan to Respond to Antisemitism

Today the High Representative for the United Nations Alliance of Civilizations announced the launch of the United Nations Action Plan to Enhance Monitoring and Response to Antisemitism. The Action Plan (full text) sets out a list of steps that the United Nations itself should take to combat antisemitism.  It also sets out recommendations to governments, international organization and non-state actors. The 22-page Plan says in part:

Antisemitism is a global challenge that requires a coordinated global response. The United Nations cannot stamp-out the scourge of antisemitism and other forms of discrimination and bigotry alone. State and non-state actors including civil society organizations, faith actors, social media companies, educators and many others, each have a role to play. In an interconnected world, where hate respects no borders, transnational cooperation can identify threats, raise awareness, broaden the use of best practices, and more effectively and proactively coordinate responses.

2 Reports Survey the State of Religious Liberty in the U.S. in 2024

Two broad reviews of the state of religious liberty in the United States were released yesterday. Becket Fund for Religious Liberty released the 6th edition of its Religious Freedom Index: American Perspectives on the First Amendment (full text). The 119-page report is based on an online poll of a nationally representative sample of 1000 American adults conducted by an independent research company. The report says in part:

The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting religious beliefs. The responses to these questions are broken down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action....

 Across multiple questions in our Index, one message rings loud and clear: Americans deeply value their First Amendment freedoms, even in the face of tough, controversial issues....

We are pleased to report that political division did not seem to negatively impact Americans’ convictions about the importance of religion and religious liberty....  Americans also report being more accepting of people of faith and more appreciative of their contributions than ever before. Encouragingly, both people of faith as a whole and non-Christian people of faith reported feeling more accepted in society than in 2023.

The U.S. Conference of Catholic Bishops yesterday released its 2025 annual report on The State of Religious Liberty in the United States (full text) (Executive Summary). The 83-page Report, which reviews developments at the national level in 2024 in Congress, the Courts and the Executive Branch, says in part:

... [B]ecause control of the two chambers of Congress was divided, most bills that threatened religious liberty—that is to say, immunity from coercion in religious matters—did not move forward. Legislation aiming to increase access to in vitro fertilization (IVF) was introduced in 2024. The most significant threats to religious liberty at the federal level came in the form of finalized regulations by federal agencies, such as the Section 1557 rule, which implements the nondiscrimination provision of the Affordable Care Act (ACA). These rules heavily focused on imposing requirements regarding abortion, sexual orientation, and gender identity....

The five areas of critical concern—threats and opportunities—for religious liberty are:

• The targeting of faith-based immigration service

• The persistence of elevated levels of antisemitic incidents 

• IVF mandates, which represent a significant threat to religious freedom, while the national discussion of IVF represents an opportunity for Catholics to share Church teaching and advocate for human dignity

• The scaling back of gender ideology in law

•  Parental choice in education, one of the longest-running areas of concern for American Catholics

Court Dismisses Some Challenges To ED Rule Protecting Student Religious Organizations

In Secular Student Alliance v. U.S. Department of Education, (D DC, Jan. 15, 2025), plaintiffs challenged a rule promulgated by the Department of Education in 2020. The rule prohibits universities receiving Education Department grants from denying any student religious organization any right, benefit or privilege available to secular groups because of the religious organization's "beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs." The D.C. federal district court dismissed two of plaintiff's claims: that the rule was ultra vires agency action and that it was in excess of the agency's statutory authority under the Administrative Procedure Act. The court held that a "sense of Congress" provision in 20 USC §1011a which says that no college student should be excluded from participation in any activity because of the student's protected speech or association, does not impose a limitation on the Department's rulemaking. The court said that the phrase is "a suggestive guideline, rather than a mandatory limitation...." The court left open to still be decided "whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law...." ADF issued a press release commenting on the decision.

Today Is Religious Freedom Day

President Biden has issued a Proclamation (full text) declaring today as Religious Freedom Day, the anniversary of the adoption by Virginia in 1786 of the Statute of Religious Freedom. The President's Proclamation reads in part:

We are all blessed to live in a Nation that is home to people of many faiths.  However, even in our land of liberty, too many people are afraid that practicing their faith will bring fear, violence, and intimidation.  Over the past year, we have seen a shocking rise in antisemitism in the wake of Hamas’s terrorist attack against Israel and a disturbing rise in Islamophobia.  Hate has no safe harbor here in America.  And around the world, minority communities continue to live in fear of violence and are denied equal protections under the law, including Christians in some countries.

My Administration is committed to ensuring that people of every faith and belief can live out their deepest conviction freely, peacefully, and safely....

Today, we recognize how religious freedom is at the core of who we are as a Nation. It is central to the freedom we offer all Americans. And it is threaded throughout all our work to advance human freedom and dignity in the world.

Secretary of State Anthony Blinken also issued a Statement (full text) marking the occasion, saying in part:

The United States’s dedication to the freedom of religion or belief continues uninterrupted.  Over the past four years, the United States has worked tirelessly to secure this right for everyone around the world.  These efforts include: documenting religious freedom conditions in every country....; declaring the actions of members of the Burmese military against Rohingya to be genocide and crimes against humanity; expanding to over 40 countries the International Freedom of Religion or Belief Alliance....

The United States has also expanded diplomatic efforts to advance freedom of religion or belief through the UN, the Article 18 Alliance, the International Contact Group, and in close coordination with partner countries.  These efforts helped secure the release of religious prisoners of conscience in Nicaragua, the People’s Republic of China, Nigeria, Iran, Somalia, Vietnam, and elsewhere around the world.

Christian Employers Sue EEOC Over Transgender Rights and Abortion Mandate

Suit was filed yesterday in a North Dakota federal district court challenging two EEOC actions. The complaint (full text) in Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission, (D ND, filed 1/15/2025) alleges in part:

First, the Equal Employment Opportunity Commission (EEOC) has improperly applied Title VII of the Civil Rights Act of 1964 to force employers to affirm and accommodate employees’ gender-transition efforts.... This mandate, published in agency “guidance” and on its website, threatens employers with large penalties if they do not use employees’ self-selected pronouns based on gender identity, and if they do not allow males to access female single-sex restrooms, locker rooms, and lactation rooms.

Second, EEOC issued a final rule that twists the Pregnant Workers Fairness Act (PWFA).... , a statute intended to protect pregnant mothers in the workplace, to impose a nationwide abortion mandate forcing employers to promote and facilitate elective abortion....

The suit alleges that these mandates from the EEOC violate the free exercise and free speech rights of members of the Christian Employers Alliance.

Texas Supreme Court Hears Arguments on State Closure of Catholic Agency Serving Migrants

On January 13, the Texas Supreme Court heard oral arguments (video of full oral arguments) in Paxton v. Annunciation House, Inc. (Links to documents and briefs in the case.) At issue is an attempt by the Texas Attorney General to shut down Annunciation House, a Catholic agency serving migrants and refugees in El Paso. The Attorney General claims that the agency is sheltering migrants who have entered the country illegally. A Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. Also at issue is the state's subpoena for records of Annunciation House. (See prior posting.) Annunciation House contends that the attempt to close it down violates the Texas Religious Freedom Restoration Act. Reform Austin reports on the oral arguments.

No Qualified Immunity Defense to RFRA Claim Is Available

In Swanson v. Flores, (SD CA, Jan. 6, 2025), a California federal district court refused to dismiss a suit for damages brought under the Religious Freedom Restoration Act by plaintiff who was a civilian employee of the Marine Corps against her former supervisor. She contends that defendant first ordered her to stop her faith-based discussions with coworkers in her office. Subsequently he ordered her to remove a Bible and religious calendar that she kept on her desk. Plaintiff contends that she maintains her religious beliefs by sharing them with others who have similar religious views and that these orders substantially burdened her ability to practice her sincerely held religious beliefs. The court held that plaintiff sufficiently stated a claim for relief.

The court also rejected defendant's claim of qualified immunity, saying in part:

With no binding authority, this Court finds that the only RFRA defense Congress intended is that stated in the statute, i.e., the defense that the government was acting to further a compelling interest and was doing so by the least restrictive means.

Brooklyn Yeshivahs File Title VI Complaint with U.S. Department of Education

Four Orthodox Jewish yeshivah elementary schools in Brooklyn, New York, have filed a complaint (full text) with the U.S. Department of Education Office of Civil Rights contending that New York City and state Education Departments are discriminating against them in violation of Title VI of the 1964 Civil Rights Act. The complaint (filed Jan. 13) alleges in part:

In 2022, New York adopted regulations that require private schools to undergo “substantial equivalency” reviews. Those reviews are now being used as cover to discriminate against Complainants. Specifically, New York is engaged in the following unlawful conduct: 

Targeting Jewish Studies curricula for disfavored and discriminatory treatment;

Prohibiting Yeshivas from providing dual-language instruction;

Forcing Yeshivas to require students to read texts from reading lists it approves;

Interfering with Yeshivas’ constitutional autonomy to select their faculty;

Refusing to respect cultural and religious classroom norms of the Yeshivas. 

To be clear, Complainants are not challenging the 2022 regulations here.  None of New York’s discriminatory practices and conduct is condoned by those regulations, let alone required by them.  Rather, New York is using the leverage it thinks it has as a result of conducting those reviews to impose its secular views on these Jewish schools. When the nanny state and the secular state converge, it is no surprise that government finds no value in Jewish education and no regard for the educational choices that parents make for their children.

Jewish News Syndicate reports on the complaint.

9th Circuit: Police Department's LGBTQ Outreach Was Government Speech That Did Not Violate 1st Amendment

In Sangervasi v. City of San Jose, (9th Cir., Jan. 14, 2025), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's denial of a preliminary injunction sought by a police officer who objected to the police department's authorizing officers to wear an LGBTQ Pride uniform patch and to the raising of a Pride flag at police headquarters.  Plaintiff wanted to create other uniform patches and flag designs featuring Christian or anti-LGBTQ themes. His proposal was denied and he was placed on indefinite administrative leave. He sued, claiming violation of his equal protection, free speech and free exercise rights. The court said in part:

The district court properly dismissed Sangervasi’s free speech and free exercise claims because Defendants were engaging in government speech and Sangervasi was speaking as a government employee....  The district court properly dismissed Sangervasi’s equal protection claims because he failed to allege facts demonstrating a discriminatory intent.

Suit Challenges State Grant to Catholic College

Suit was filed this week in a West Virginia state trial court challenging a $5 million grant made by the West Virginia Water Development Authority to a Catholic college located in Ohio just across the Ohio River from West Virginia. The grant largely supports projected projects in West Virginia or the education of West Virginia students. The suit alleges that the grant violates the West Virginia state constitution's Establishment Clause.  The complaint (full text) in American Humanist Association v. West Virginia Water Development Authority, (WV Cir. Ct., filed 1/13/2025), alleges in part:

28.  Through the awarding of this grant, the State of West Virginia, through the West Virginia Water Development Authority, requires taxpayers to fund the work of this Catholic Institution, which states “the mission of St. Joseph the Worker is to serve the Church and to serve our country through providing our society with such workers.” 

29.   In so doing, the State of West Virginia has impermissibly violated the anti-establishment provision of the State Constitution guaranteeing the right to freedom of religion. 

ACLU of West Virginia issued a press release announcing the filing of the lawsuit.