HHS Issues Guidance On Defining Gender-Based Terms

On Wednesday, the Department of Health and Human Services issued a release titled "Defining Sex: Guidance for Federal Agencies, External Partners, and the Public Implementing Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." (full text). The 1½ page memo says in part:

There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm....

Recognizing the immutable and biological nature of sex is essential to ensure the protection of women’s health, safety, private spaces, sports, and opportunities. Restoring biological truth to the Federal government is critical to scientific inquiry, public safety, morale, and trust in government itself.

The Release goes on to define the terms "sex", "female", "male". "woman", "girl", "man", "boy", "mother", and "father",

Catholic Bishops Sue Feds Over Cutoff of Refugee Resettlement Funding

The U.S. Conference of Catholic Bishops this week filed suit against the State Department and HHS challenging the abrupt cutoff of funds for refugee resettlement. The complaint (full text) in U.S. Conference of Catholic Bishops v. U.S. Department of State,, (DDC, filed 2/18/2025), alleges in part:

First, the Refugee Funding Suspension contravenes appropriations-related statutes and flouts the Constitution’s vesting of the power of the purse in Congress....

Second, the Refugee Funding Suspension is arbitrary and capricious.  For the first time in forty-five years, and without warning, the government has cut off funding to USCCB for the essential services USCCB provides to government-approved refugees, including refugees already placed with USCCB and its subrecipients....

Third, the Refugee Funding Suspension is unlawful because it was done without public notice and opportunity to comment.

The U.S. Conference of Catholic bishops issued a press release announcing the filing of the lawsuit.

ED's Title IX Rule Violates 1st Amendment

 In Carroll Independent School District v. U.S. Department of Education, (ND TX, Feb. 19, 2025), a Texas federal district court invalidated the Department of Education’s rule that interprets Title IX as prohibiting discrimination based on sexual orientation and gender identity. The court had previously issued a preliminary injunction barring enforcement of the rule against plaintiff school district.  The court now permanently vacates the Rule, finding, among other things, that it violates the First Amendment. The court said in part:

Because “misgendering” could, under this broad standard, constitute hostile environment harassment, teachers will “assume they should use subjective gender terms to avoid discipline under the Final Rule.”

As a consequence, recipients of Title IX funds, including teachers, are forced “to be an instrument for fostering public adherence to an ideological point of view [they] find[] unacceptable.”... The Final Rule functionally turns recipients of federal funds into federally commandeered censors of speech, forcing schools to require engagement in or, at a minimum, to prohibit certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.

ADF issued a press release announcing the decision.

Suit Challenges Software Company's Denial of Discount to Christian Nonprofit

A suit under California's Unruh Civil Rights Act was filed yesterday in a California federal district court by a Christian nonprofit organization that offers a video curriculum designed to instruct teenagers about Christian beliefs on sexuality.  The complaint (full text) in Holy Sexuality v. Asana, Inc., (SD CA, filed 2/18/25), alleges that Asana, Inc. which sells subscriptions for project management software, violated the public accommodation religious discrimination provisions of California law when it denied plaintiff the 50% discount offered to nonprofits. According to the complaint:

To qualify, nonprofits must: have 501(c)(3) status; not be an education or academic institution, hospital, hospital auxiliary, nurse register, mutual organization, or credit union; and not “advocate, support, or practice discrimination based on age, ethnicity, gender, national origin, disability, race, size, religion, sexual orientation, or socioeconomic background.”...

But, under its Religious Discrimination Policy, Asana denies that discount to “[r]eligious organizations that exist to solely propagate a belief in a specific faith.”...

Asana’s religious discrimination was and remains arbitrary, especially because Asana grants discounts to nonprofits who hold views opposite to Holy Sexuality’s and grants discounts to other religious nonprofits.

ADF issued a press release announcing the filing of the lawsuit.

Refusing to Allow Minister To Wear Collar At His Criminal Trial Was Not Reversable Error

 In People v. Johnson, (CA App., Feb. 18, 2025), a California state appellate court held that a trial court's refusal to allow a criminal defendant, an ordained minister, to wear his clerical collar and have a Bible with him during his trial was not reversable error. Defendant was charged with gross vehicular homicide while intoxicated. The court said in part:

Assuming only for purposes of argument that the trial court erred in not allowing defendant to wear a collar, we must determine whether the error would have been prejudicial.  Federal constitutional error requires reversal unless the beneficiary of the error can show it was “harmless beyond a reasonable doubt.” ...

... [P]rohibiting defendant from wearing a clerical collar did not result in a structural defect in the constitution of his trial.  Nothing in the record indicates his inability to wear a collar impacted the outcome of his trial, interfered with his fundamental trial rights, or in any way impacted the trial’s structural truth-finding process.  Any error by the trial court in not allowing defendant to wear a collar was not structural. 

We thus must determine whether the assumed error was harmless beyond a reasonable doubt...  Defendant offers no argument on this point.  As a result, he has forfeited the issue....  Any error by the trial court denying defendant his request to wear a clerical collar was harmless beyond a reasonable doubt and not prejudicial.

The trial court sentenced defendant to 25 years to life under California's Three Strikes Law. The Court of Appeals however remanded the case for resentencing, finding that defendant did not receive fair notice that a three-strike sentence would be sought.

Court Issues TRO Barring Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, Feb. 14, 2025), a Maryland federal district court set out its reasons for issuing a nation-wide temporary restraining order barring enforcement of the sections of two Executive Orders that prohibit federal funding for institutions that provide gender affirming care for patients under 19 years of age. At issue are provisions in Executive Order 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government and in Executive Order 14187, titled Protecting Children from Chemical and Surgical Mutilation. The court said in part:

Defendants admit in the very first line of their response in opposition to the motion for a TRO that the President "issued two Executive Orders directing agencies to take steps, as permitted by law, to condition certain federal grant funding on his policy preferences."23 ECF 55, at 3. This is a clear violation of the Constitution as "attempt[s] [by the Executive Branch] to place new conditions on federal funds [are] an improper attempt to wield Congress's exclusive spending power and is a violation of the Constitution's separation of powers principles."....

Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Defendants assert that the challenged portions of the Executive Orders are based on the important government interest of "protecting the physical and emotional well-being of youth."...  Defendants assert that the Orders are substantially related to this important government interest because "[ e ]vidence. abounds that treatments covered by the Protecting Children EO 'are dangerous and ineffective."'... Though Defendants might well have support for this argument, the en banc Fourth Circuit in Kadel rejected a similar claim by noting that "those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing."... Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Jeremy Ross, Fulton, Foster Care, and Free Exercise, (Tex. Rev. L. & Pol. (forthcoming 2025)).
• Thomas Charles Berg, Defining Neutrality, Combating Polarization: Laycock’s Essential Contributions, (Journal of Law and Religion (forthcoming 2025)).
• Caroline Mala Corbin, New Judicial Federalism and the Establishment Clause: Classroom Ten Commandments as a Case Study in State Constitutional Protection, (Texas Law Review (forthcoming)).
• R. George Wright, On the Justification of Academic Freedom and of Free Speech On the University Campus, (December 26, 2024).
• Catherine Archibald, Still Problematic, Even Post-Settlement: Florida’s “Don’t Say Gay” Law and the Federal Constitution, (28 Chapman Law Review 1 (2024)).
• Valeria Gomez, The New Abortion Borders for Immigrant Women, (Minnesota Journal of Law and Inequality (Forthcoming, Vol. 43)).
• Teresa Stanton Collett, The Unsettled (and Unsettling) State of Abortion Law in the United States in 2024, (Abortion: A Comparative Perspective, Centro para el Bien Común Global Instituto Razón Abierta (2025)).
• Clare Ryan & Benjamin J. McMichael, The Future of Frozen Embryos, (SMU Law Review, Forthcoming 2025).
• Dov Fox & Mary Ziegler, The New Abortion, (Columbia Law Review, Vol. 126 (forthcoming 2025)).

From SSRN (Non-U.S. Law)

• Ahmer Bilal Soofi, The Lost Sunnah Of Treaty Negotiation – Need For Revival, (December 15, 2024).
• Ahmer Bilal Soofi, The Prophet (pbuh) as an International Law Practioner,  (December 02, 2024).
• Susanna Mancini, Freedom of Religion in Italy and Europe, (December 10, 2024).

From SmartCILP:

• Ann C. McGinley, Religious Accommodations in the Dobbs Era, 27 Employee Rights & Employment Policy Journal 276-334 (2024).

Parent May Proceed on Some Challenges to School's Policy on Transgender Students

In Landerer v. Dover Area School District, (MD PA, Feb. 13, 2025), a mother challenged a school board's policy Directive that prohibits parental notification without student consent when a student asks to socially transition and be called by a different name or pronouns. The court held that plaintiff lacked standing to obtain injunctive or declaratory relief because she had withdrawn her children from the Dover School District. The court also dismissed plaintiff's free exercise claim, saying in part:

... [T]he policy here is rationally related to the legitimate interest of protecting transgender students. Even though the policy is alleged by Plaintiff to impact or burden her religious beliefs, the Directive survives rational basis review.

The court however refused to dismiss plaintiff's claim that a teacher interfered with her right to direct the care (including medical and mental health care), custody and control of her child. It also refused to dismiss plaintiff's claim that she was denied procedural due process because the Directive failed to provide for notice to parents of their children's request to use a different name and pronoun. The court allowed plaintiff to proceed only against the school board and not against the individual defendants on these claims because of qualified immunity.

Anti-Abortion Pregnancy Centers Sue Challenging Delaware Disclaimer Requirements

Suit was filed this week in a Delaware federal district court challenging a new Delaware law that requires pro-life pregnancy centers to include in all advertising and to disseminate to clients onsite a disclaimer stating:  "This facility is not licensed as a medical facility by the state of Delaware and has no licensed medical provider who provides or directly supervises the provision of services." The complaint (full text) in National Institute of Family and Life Advocates v. Jennings, (D DE, filed 2/12/2025) alleges that this requirement violates the free speech and free exercise rights of pregnancy care centers. The complaint alleges in part:

13. ... [The law] is a classic example of compelled speech in violation of the Free Speech Clause. The law is expressly content-based both because it compels the content of speech and because it regulates only speakers who wish to discuss the subject of pregnancy from a pro-life perspective rather than any other health topic.

14. The law is also viewpoint based, because it is designed to target pro-life pregnancy care centers and burdens, restricts, chills, or in some circumstances legally prohibits their message. It does not similarly impact pro-abortion advocacy groups, individuals, or facilities. 

15. The law also infringes upon the free exercise rights of the pregnancy care centers which are founded with a religious mission to engage and support women, but will be forced to drown out their religiously motivated messages (including ones with primarily or exclusively religious content) and present misleading information to undercut the opportunities the pregnancy care centers have to engage pregnant women in unplanned or unsupported pregnancies.

ADF issued a press release announcing the filing of the lawsuit.

Kansas Governor Vetoes Bill Banning Medical and Surgical Treatment of Minors for Gender Dysphoria

 On Feb. 11, Kansas Governor Laura Kelly vetoed Senate Bill 63 which prohibited medical, hormonal or surgical treatment of minors for gender dysphoria. It provided for damage actions against doctors who violated the prohibitions and barred insurance policies from covering liability for such damages. State employees whose duties include care of children may not promote social transitioning. In her veto message (full text), Governor Kelly said in part:

Infringing on parental rights is not appropriate, nor is it a Kansas value. As I’ve said before, it is not the job of politicians to stand between a parent and a child who needs medical care of any kind. This legislation will also drive families, businesses, and health care workers out of our state, stifling our economy and exacerbating our workforce shortage issue.

Reporting on these developments, Kansas Reflector said in part:

Kelly, a Democrat, vetoed a similar bill last year, and Republicans failed to coordinate the necessary two-thirds majority to override the veto. House Speaker Dan Hawkins, a Wichita Republican, said in a statement Tuesday that House Republicans were ready to override this year’s veto.

UPDATE: On Feb. 18, the Kansas legislature overrode Governor Kelly's veto. 

New Report on Antisemitism in the U.S. Released

This week, the American Jewish Committee released its report on The State of Antisemitism in America 2024. The report is comprised of a survey of American Jews, a survey of the U.S. general public, and a comparison of the two surveys. Among the report's key findings are:

77% of American Jews say they feel less safe as a Jewish person in the U.S. because of the October 7, 2023, Hamas terrorist attacks.

Nearly six in 10 (56%) American Jews say they altered their behavior out of fear of antisemitism in 2024 – a sharp increase from previous years. In 2023, this number was 46%, and 38% in 2022.

90% of American Jews say antisemitism has increased in the U.S. since the Hamas terrorist attacks.

One-third (33%) of American Jews say they have been the personal target of antisemitism – in person or virtually – at least once over the last year.