Showing posts with label Equal Protection. Show all posts
Showing posts with label Equal Protection. Show all posts

Monday, March 11, 2024

Ban on Caste Discrimination Is Constitutional

In Bagal v. Sawant, (WD WA, March 8, 2024), a Washington federal district court rejected First and 14th Amendment challenges to the City of Seattle's adding of "caste" as a protected class under its anti-discrimination Ordinance. The court said in part:

First, Plaintiff argues that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion....

Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith.... [H]aving failed to allege a cognizable injury, Plaintiff de facto lacks standing to assert a Free Exercise challenge to the Ordinance. Plaintiff’s Establishment Clause claim is similarly unavailing.... Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favor or opposition to that religion. And that, because the City of Seattle opted to disfavor caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion. But that logic proves too much. And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion, that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause....

It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.... In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.  Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial....

Second, Plaintiff contends that the Ordinance violates the Equal Protection Clause....

Nowhere does the text of the Ordinance make use of prohibited classifications.  Rather, the Ordinance is facially neutral and of general applicability.  Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.... Further to the point, Plaintiff’s complaint does not plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.

Tuesday, February 20, 2024

Certiorari Denied in Case of Jurors Disqualified Because of Religious Beliefs

Today the Supreme Court denied review in Missouri Department of Corrections v. Finney, (certiorari denied, 2/20/2024). In the case a Missouri state appellate court (full text of state court opinion) upheld a trial court's striking of three potential jurors for cause. The suit involved claims against the Department of Corrections by a lesbian employee alleging sex discrimination and hostile work environment. The potential jurors were disqualified because of their strongly-held religious views that homosexuality is a sin. Homosexuality was an important issue in the case. Justice Alito filed a Statement respecting the denial of certiorari indicating that were it not for a complicating state law issue in the case, he would have voted to grant review, saying in part:

Before us, the Department of Corrections argues that these for-cause dismissals were unconstitutional, and I agree that the Court of Appeals’ reasoning raises a very serious and important question that we should address in an appropriate case. The judiciary, no less than the other branches of State and Federal Government, must respect people’s fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws. When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.

Tuesday, February 06, 2024

Satanic Temple Loses Challenge to Idaho Abortion Bans

In The Satanic Temple v. Labrador, (D ID, Jan. 31, 2024), an Idaho federal district court dismissed several challenges to Idaho's statutes criminalizing abortion filed by The Satanic Temple which has created its own Abortion Ritual.  The court describes plaintiff's claims:

The Satanic Temple (“TST”) filed the instant case arguing Defendants actions have: (1) effected a regulatory taking of the economic value of a pregnant woman’s womb in violation of the Fifth Amendment; (2) effectively made pregnant women into slaves in violation of the Thirteenth Amendment; (3) given unconstitutional preferences to rape victims in violation of the Fourteenth Amendment; and (4) violated Idaho’s religious freedom statutes.

After finding that TST lacks standing to bring the suit, the court goes on to also reject TST's first three claims on the merits and concludes that TST, which asked to file an amended complaint to substitute a free exercise claim for its claim under Idaho's Exercise of Religious Freedom Act, should do this by fining a new lawsuit rather than an amended complaint.

Idaho Attorney General Labrador issued a press release announcing the decision which he titled "Attorney General Labrador Defeats Satan." LifeNews reporting on the decision said that lawyers for TST plan an appeal to the 9th Circuit.

Sunday, February 04, 2024

Good News Clubs Sue for Access to Hawaii Schools

Suit was filed two weeks ago in a Hawaii federal district court against the Hawaii Department of Education and four school districts in which schools have denied permission for Good News Clubs to use various school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Hawaii, Inc. v. Hawaii State Department of Education, (D HI, filed 1/23/2024), alleges that the denials violate plaintiff's free speech, free exercise, Establishment Clause and equal protection rights. Plaintiff has also filed a Motion for Preliminary Injunction accompanied by a Memorandum of Law supporting the Motion (full text). Liberty Counsel issued a press release announcing the filing of the lawsuit.

Monday, January 29, 2024

Pennsylvania Supreme Court Casts Doubt on Abortion Exclusion From State Medicaid Coverage

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Sup. Ct., Jan. 29, 2024) [Majority Opinion], the Pennsylvania Supreme Court remanded to the trial court for strict scrutiny review a challenge to the constitutionality of Pennsylvania's ban on the use of state Medicaid funds for abortion services (except in the case of rape, incest or threat to the life of the mother). Six of the Court's 7 Justices participated in the case.  Justice Donohue's opinion (joined by Justice Wecht) sets out the conclusions of a majority of the Justices in a 219-page opinion. The majority overruled its 1985 decision in Fischer v. Department of Public Welfare that had upheld the ban.  The majority concluded that that pregnancy-related distinctions may violate the state Constitution's Equal Rights Amendment (Art. I, Sec. 28), saying in part:

... [T]he Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex....

 ... [W]e overrule Fischer’s interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

The majority also overruled Fischer's holding that the state Constitution's equal protection provision (Art. I, Sec. 26) does not prevent the state from conferring a benefit unequally.  The majority said in part:

... [A] court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

Writing only for himself and Justice Wecht, Justice Donohue also contended that that the state Constitution substantively protects a woman's right to make reproductive decisions, including abortion.

Justice Wecht also filed a 71-page concurring opinion discussing additional issues. Chief Justice Todd filed a 17-page opinion dissenting in part, concluding that the Fischer decision is binding precedent. Justice Dougherty filed a brief opinion concurring in part, agreeing with the majority's overruling of Fischer. Justice Mundy filed a 24-page opinion dissenting in part, concluding that the funding ban should be upheld on the basis of the Fischer case and strongly criticizing the majority's holding that Art. I, Section 26 requires funding neutrality.

Philadelphia Inquirer reports on the decision.

Wednesday, January 17, 2024

Certiorari Denied In Transgender Bathroom Case

Yesterday, the U.S. Supreme Court denied review in Metropolitan School District v. A.C., (Docket No. 23-392, certiorari denied 1/16/2024) (Order List). In the case (A.C. v. Metropolitan School District, (7th Cir., Aug. 1, 2023)) the U.S. 7th Circuit Court of Appeals-- invoking Title IX and the Equal Protection Clause-- affirmed an injunction issued by an Indiana federal district court ordering a school to grant a transgender boy access to boys' rest rooms. ACLU issued a press release on the Supreme Court's action.

Sunday, December 31, 2023

School Board Not Liable for Teacher's Proselytization of Muslim Student

In Chaudhry v. Community Unit School District 300 Board of Education(ND IL, Dec. 29, 2023), an Illinois federal district court dismissed Establishment Clause, Due Process and Equal Protection claims by Muslim parents against an Illinois school board that employed teacher Pierre Thorsen who convinced their daughter to convert to Christianity.  The court said in part:

[T]he complaint continues to state an implausible theory of Monell liability because it does not plead enough factual matter to raise the inference that any assertedly unconstitutional practice had become so widespread that the Board was bound to have noticed it. It likewise continues to fail to plausibly allege that anyone other than Thorsen was the moving force behind any of the Parents’ asserted injuries.... At best, the Parents have alleged facts consistent only with the “isolated wrongdoing of one . . . rogue employee[].”... Because Monell does not allow for respondeat superior liability, these claims are not plausibly pleaded, and they therefore fail.

Thursday, December 28, 2023

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

Friday, December 15, 2023

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.

Wednesday, November 29, 2023

Jewish Groups Sue Over Berkeley Law Student Organizations' Antisemitic Policies

Suit was filed yesterday in a California federal district court against the University of California at Berkely and Berkeley Law School challenging growing antisemitic discrimination and harassment on campus. The complaint (full text) in Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, filed 11/28/2023), alleges that policies of law student organizations violate the Equal Protection and Free Exercise Clauses, violates the §1981 right to contract and violates Title VI of the 1964 Civil Rights Act. The complaint alleges in part:

4. In spite of the recognition of anti-Zionism as a form of anti-Semitism, no fewer than 23 Berkeley Law student organizations have enacted policies to discriminate against and exclude Jewish students, faculty, and scholars. For example: 

• To be a member of Women of Berkeley Law, the Queer Caucus at Berkeley, or the Asian Pacific American Law Students Association, Jewish students must accede to the groups' support of the Boycott Divestment and Sanctions movement, which seeks to dismantle the modern State of Israel; 

• In order to volunteer to provide pro bono legal services through a number of Berkeley Law Legal Services organizations, Jewish students must undergo a "Palestine 101" training program that emphasizes the illegitimacy of the State of Israel; 

• And to speak to any of these student organizations, invited speakers must first repudiate Zionism under a bylaw that prohibits speakers who hold Zionist views (the "Exclusionary Bylaw"). In fact, the Berkeley Journal of Gender, Law, and Justice, goes one step further, prohibiting Zionists not only from speaking to its members but from publishing in its pages. 

5. Under these policies, Jewish students, faculty, and guest speakers must deny a central part of their cultural, ancestral heritage and a fundamental tenet of their faith in order to be eligible for the same opportunities Berkeley accords to others....

118.  Specifically, Defendants have selectively chosen not to enforce Berkeley's all-comers policy and Policy on Nondiscrimination against student organizations in the Law School and the undergraduate campus that have discriminated against or excluded Jewish members of the school community from participating in organizations, programs, and activities. For similar reasons, Defendants' decision not to enforce the Policy on Nondiscrimination against these groups where they refuse to accept Jewish speakers is unlawful.,,,

Politico reports on the lawsuit.

Thursday, November 09, 2023

Suit Challenges Michigan's Reproductive Freedom Amendment on Federal Constitutional Grounds

In November 2022, Michigan voters passed a state constitutional amendment providing a right to reproductive freedom. Yesterday a group of plaintiffs filed suit in a Michigan federal district court contending that the state constitutional amendment violates the 1st and 14th Amendments to the federal Constitution, as well as the Constitution's Guarantee Clause. Among the 16 plaintiffs is "Jane Roe, a fictitious name on behalf of preborn babies." The complaint (full text) in Right to Life of Michigan v. Whitmer, (WD MI, filed 11/8/2023), alleges in part:

By reason of Article I, § 28 of the Michigan Constitution ..., Defendants have deprived Plaintiffs, specifically including women, and in particular pregnant women; preborn human beings, including Jane Roe and similarly situated individuals; preborn human beings with disabilities; partially born human beings; and human beings born following a failed abortion of the equal protection of the law guaranteed under the Fourteenth Amendment....

 Article I, § 28 permits individuals, including public school officials, medical professionals, and others, to aid or assist a minor child with procuring an abortion, obtaining contraception, obtaining “gender reassignment” medication or procedures, and becoming sterilized without parental knowledge or consent and with impunity in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment.

... Article I, § 28 permits adults to engage in sexual acts with minors so long as the minor consents, thereby undermining the right of parents to direct the upbringing of their children in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment....

Article I, § 28 nullifies all statutory protection provided to physicians and other medical professionals ... who object to abortion, contraception, “gender reassignment” medication/procedures, sterilization, puberty blockers, and other harmful medical procedures related to “reproduction” on moral and religious grounds in violation of their sincerely held religious beliefs....

Article I, § 28 deprives preborn human beings, including Jane Roe and similarly situated individuals, preborn human beings with disabilities, partially born human beings, and human beings born following a failed abortion of the right to life and liberty without due process of law....

Article I, § 28, which was passed pursuant to the process of amending the Michigan Constitution, nullifies the legitimate authority of a coordinate branch of government, the Legislative Branch, by prohibiting it from regulating or governing in a broad area of the law (“reproduction”) that has historically been within its legitimate domain in violation of the Guarantee Clause of the United States Constitution....

Right To Life Michigan issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.  [Thanks to Scott Mange and Thomas Rutledge for the lead.]

Wednesday, November 08, 2023

6th Circuit Rejects Equal Protection Challenge To Michigan Ban On Public Funds for Private and Religious Schools

In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:

They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.

The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination.  The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.

Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.

Friday, November 03, 2023

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

Tuesday, October 03, 2023

2 North Carolina Abortion Restrictions Enjoined

 In Planned Parenthood South Atlantic v. Stein, (MD NC, Sept. 30, 2023), a North Carolina federal district court issued a preliminary injunction barring enforcement of two provisions of North Carolina's law regulating abortions.  The court said in part:

The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy. The Act does not provide a clear standard by which providers can make this determination....

The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act's requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital.  The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose... The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients....

CNN reports on the decision. 

Friday, September 29, 2023

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

Friday, September 22, 2023

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

Thursday, August 31, 2023

8th Circuit Rejects Satanic Temple's Complaint Over Closing Park to Its Display

 In The Satanic Temple v. City of Belle Plaine, Minnesota,(8th Cir., Aug. 30, 2023), the U.S. 8th Circuit Court of Appeals held that the district court was correct in dismissing free speech, free exercise, equal protection, and RLUIPA claims brought by The Satanic Temple (TST) against the City of Belle Plaine.  As summarized by the court:

In March 2017, the City gave two groups permits [to place monuments in Veterans Memorial Park]: the Belle Plaine Veterans Club and the Satanic Temple. The Veterans Club returned the kneeling soldier statue to the Park in April, but the Satanic Temple’s display wasn’t ready yet. While the Satanic Temple’s display was being built, people objected to it being placed in the Park. In June, the Satanic Temple told the City that its display was ready. The City Council then passed a “Recission Resolution,” closing the Park as a limited public forum, terminating both permits, and instructing the Veterans Club to remove its statue.

The court held:

The City closed the limited public forum to everyone, not just speakers with certain views. The Satanic Temple has not plausibly alleged that closing the Park as a limited public forum was unreasonable or viewpoint discriminatory....

...The Satanic Temple has not alleged any facts showing that its religious conduct was targeted for “distinctive treatment.”...

... The Satanic Temple has not plausibly alleged that the City’s resolutions burden its religious conduct or philosophy....

The Satanic Temple has not plausibly alleged that it and the Veterans Club were similarly situated or that it was treated differently. Nor has it plausibly alleged that the Rescission Resolution was discriminatory on its face or had a discriminatory purpose or impact. The City gave a permit to both groups, had no control over the fact that the Veterans Club placed its statue first, and closed the Park as a limited public forum to everyone. So the Satanic Temple has not plausibly alleged an equal protection claim.

Tuesday, August 22, 2023

Court Preliminarily Enjoins Georgia's Ban on Hormone Therapy for Transgender Minors

In Koe v. Noggle, (ND GA, Aug. 20, 2023), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's ban on hormone replacement therapy for treatment of gender dysphoria in minors. The court said in part:

... SB 140 is subject to intermediate scrutiny both because it classifies on the basis of natal sex ... Adams, and because it places a special burden on nonconformity with sex stereotypes....

First, the preliminary record evidence of the medical risks and benefits of hormone therapy shows that a broad ban on the treatment is not substantially likely to serve the state’s interest in protecting children.... 

... [I]t should be recalled that the question put to the Court is not what the correct course of treatment is for an adolescent with gender dysphoria. The question is whether Georgia has shown an “exceedingly persuasive justification” for the challenged legislative scheme—a scheme that prohibits clinicians and parents from determining the correct course of treatment on an individualized basis, and which does so in a sex-based manner in that it imposes this prohibition only when it comes to “hormone replacement therapy” as a treatment for gender dysphoric youth....

... Defendants’ position that the quality of the existing evidence supporting hormone therapy justifies a ban of that therapy is not persuasive.

The court's decision was handed down one day before the 11th Circuit Court of Appeals (which includes Georgia) issued an opinion vacating a preliminary injunction against Alabama's ban on hormone treatment for minors with gender dysphoria. (See prior posting.)  The Hill reports on the decision.

Friday, August 18, 2023

9th Circuit Affirms Preliminary Injunction Against Idaho's Ban on Transgender Women in School Sports

 In Hecox v. Little, (9th Cir., Aug. 17, 2023), the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction issued by the district court barring enforcement of Idaho's ban on transgender women participating on women's sports teams.  The ban applies to public primary and secondary schools and public colleges, as well as to other schools that compete against public schools or colleges. The Act also creates a procedure for disputing the sex of a member of a women's team. The court said in part:

The district court did not err in concluding that heightened scrutiny applies because the Act discriminates against transgender women by categorically excluding them from female sports, as well as on the basis of sex by subjecting all female athletes, but no male athletes, to invasive sex verification procedures to implement that policy....

... [T]he Act sweeps much more broadly than simply excluding transgender women who have gone through “endogenous puberty.” The Act’s categorical ban includes transgender students who are young girls in elementary school or even kindergarten. Other transgender women take puberty blockers and never experience endogenous puberty, yet the Act indiscriminately bars them from participation in women’s student athletics, regardless of their testosterone levels....

Second, as the district court found, there was very little anecdotal evidence at the time of the Act’s passage that transgender women had displaced or were displacing cisgender women in sports or scholarships or like opportunities....

We must “reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.”...

We agree with the district court that, contrary to the Act’s express purpose of ensuring women’s equality and opportunities in sports, the sex dispute verification process likely will discourage the participation of Idaho female students in student athletics by allowing any person to dispute their gender and then subjecting them to unnecessary medical testing and genital inspections. Because the Act’s means undermine its purported objectives and impose an unjustifiable burden on all female athletes in Idaho, the district court did not abuse its discretion by finding that the sex verification provision likely would not survive heightened scrutiny....

Judge Christen dissented in part, contending that the verification procedure discriminates on the basis of the team an athlete chooses to join, not on the basis of sex. She also contends that the trial court's injunction is not sufficiently specific or sufficiently tailored.  UPI reports on the decision.