Pro-Life Protesters Can Continue Viewpoint Discrimination Suit Over D.C. Defacement Ordinance

 In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim.  Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:

... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...

The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

Judge Wilkins filed a concurring opinion, saying in part:

In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.

ADF issued a press release announcing the decision.

 

Hawaii County's Denial of Permit to Temple Did Not Meet Strict Scrutiny Test

In Spirit of Aloha Temple v. County of Maui, (D HI, Aug. 11, 2023), in a case that has been in litigation for more than seven years, a Hawaii federal district court entered partial summary judgment for plaintiffs on one issue in the case. It held that the state had not met the strict scrutiny test on plaintiffs RLUIPA, free exercise and equal protection challenges to the denial of a special use permit to allow Spirit of Aloha Temple to use agriculturally-zoned land for a church and several other church-operated facilities including a wedding venue site. The court concluded that the denial was neither narrowly tailored nor the least restrictive means of furthering a compelling governmental interest. However, a number of other issues remain to be decided before determining whether there were statutory or constitutional violations. There remains the question of whether denial of the special use permit imposed a substantial burden on the Temple. According to the court, for purposes of RLUIPA that, in turn, depends on whether plaintiffs had a reasonable expectation of being able to build a religious institution on the land when they acquired it. For plaintiffs' federal and state free exercise claims, plaintiffs must show that their operation of the property was rooted in religious belief and that the county had an intent to discriminate. The court went on to hold that the RLUIPA non-discrimination (as opposed to its "substantial burden") provisions do not turn on strict-scrutiny review, but instead on whether there was religious discrimination.  When the regulation is neutral, that requires showing an intent to discriminate.

Challenges To School's Transgender Bathroom Policy Dismissed

In Doe No. 1 v. Bethel Local School District Board of Education, (SD OH, Aug. 7, 2023), an Ohio federal district court, in a 52-page opinion, dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. The court said in part:

All Plaintiffs claim that the School District is “providing communal intimate facilities for transgender students in accordance with their believed core identity while denying the Muslim and Christian families communal intimate facilities in accordance with their believed core identity.”...

Parents have a right to make the initial choice about where their child attends school.... But inventing a constitutional right to strike down a state school’s choices about curriculum and school operations would impermissibly extend that right and, in our pluralistic society, require State schools to cater to inconsistent obligations from parents who may have different moral objections about how a school operates.... The substantive protections in the Due Process Clause do not extend so far....

The Muslim and Christian Plaintiffs—parents and students alike—allege that the School District’s actions have burdened the exercise of their religion.... Namely, both student groups have sincerely held religious beliefs that prevent them from sharing bathrooms with the opposite gender and receiving instruction about LGBTQ+ beliefs.... In exposing the Muslim and Christian Student Plaintiffs to the prospect that they will encounter a transgender individual in the bathroom, the School District has allegedly indirectly burdened the exercise of their faith because they have caused them to refrain from using the bathroom.... As to the Muslim and Christian Parent Plaintiffs, they allege that the School District’s actions are denying them “the ability to exercise their good-faith religious beliefs in raising their children in [their] faith.”... 

... [T]he School District’s policy ... is neutral and generally applicable. As a reminder, the School District announced that it would allow students to use the bathroom that corresponded with their gender identity..... This is (1) facially neutral because it makes no reference, overt or implied, to religion or religious conduct; and (2) generally applicable because it restricts religious and nonreligious conduct equally—every student gets to use the bathroom that corresponds with their gender identity.....

Moreover, Plaintiffs’ complaint does not hint of any plausible fact that suggests the School District is using this policy to suppress religious beliefs, as the School District’s actions make no mention of, and do not reference, religion whatsoever....

Because the bathroom policy is generally applicable, it is subject only to rational basis review. 

Cincinnati Enquirer reports on the decision.

Court Upholds Accreditation Requirement For Religious University

In Wisdom Ministries, Inc. v. Garrett,(ND OK, Aug. 1, 2023), an Oklahoma federal district court rejected a constitutional challenge to a cease and desist order issued by the Oklahoma State Regents.  The Regents insisted that Wisdom University, an Oklahoma-based online university operated by Wisdom Ministries, obtain proper accreditation before it issues degrees. The court held that the requirement does not violate the university's free expression, free exercise, Establishment Clause, freedom of association or equal protection rights, saying in part:

The issue raised by plaintiff has nothing to do with governmental restriction of content or subject matter being taught at Wisdom University but, instead, the state is applying a facially neutral regulation that ... falls with the power of the state to regulate business conduct....

Consumer protection is a legitimate state interest, and there is an equal need to protect students attending a secular or religious institution from paying for a degree program that does not meet certain minimal objective standards. The statute does not impose any higher burden on religious schools to obtain accreditation and such institutions are free to obtain accreditation from an agency specializing on accreditation for religious schools. Nothing about the accreditation requirement suggests that the state is favoring secular institutions or acting with hostility to religious institutions, and plaintiff has not shown that enforcement of the accreditation requirement of § 4103 violates the Free Exercise Clause as applied to religious colleges or universities....

Plaintiff’s allegations do not support a plausible claim that enforcement of the accreditation requirement of § 4103 will violate plaintiff’s rights under the Establishment Clause. Plaintiff makes a series of conclusory allegations that obtaining proper accreditation will involve the Regents in plaintiff’s religious affairs, but these allegations are speculative at best. Defendants have taken the position that Wisdom Ministries is free to operate a school or university without obtaining the accreditation required by § 4103, as long as Wisdom Ministries does not purport to offer a degree.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

Parochial School Students Sue For Equal Access to District Extracurricular Activities

Suit was filed last week in a Pennsylvania federal district court on behalf of two parochial school students and their parents challenging a school district policy that allowed home school and charter school students to participate in the district's extracurricular and co-curricular activities but does not allow private and parochial school students the same right. The complaint (full text) in Religious Rights Foundation of Pa v. State College Area School District, (MD PA, filed 7/10/2023), contends that exclusion of religious parochial schools violates plaintiff's free exercise and equal protection rights. Penn Live reports on the lawsuit..

6th Circuit Stays Injunction Against Tennessee's Ban on Treatment of Transgender Youth

In L.W. v. Skrmetti, (6th Cir., July 8, 2023), the U.S. 6th Circuit Court of Appeals in a 2-1 decision stayed a district court's preliminary injunction against Tennessee's ban on providing puberty blockers and hormone therapy for minors suffering from gender dysphoria. Chief Judge Sutton's majority opinion first held that the district court had abused its power by issuing a state-wide injunction in the case. It went on to hold that plaintiffs are unlikely to prevail on their due process or equal protection challenges, saying in part:

Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field....

Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.”.... But the Supreme Court cases recognizing this right confine it to narrow fields, such as education ... and visitation rights.... No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.....

Gender-affirming procedures often employ FDA-approved drugs for non-approved, “off label” uses. Tennessee decided that such off-label use in this area presents unacceptable dangers.... Many medical professionals and many medical organizations may disagree. But the Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some....

Equal protection.... The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.....

The plaintiffs separately claim that the Act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class. But neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class. Until that changes, rational basis review applies to transgender-based classifications....

These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction....

Judge White dissented in part, agreeing that the injunction was too broad, but concluding that plaintiffs would likely succeed on their Equal Protection challenge because the law discriminates on the basis of sex.

Politico reports on the decision.

Suit Challenges Georgia Ban on Treatment of Minors for Gender Dysphoria

Suit was filed last week in a Georgia federal district court challenging the constitutionality of Georgia Senate Bill 140 which prohibits irreversible sex reassignment surgery and hormone replacement treatment of minors for gender dysphoria. The complaint (full text) in Koe v. Noggle, (ND GA, filed 6/29/2023), alleges in part:

The Health Care Ban violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children. By prohibiting medical providers from treating minors with gender dysphoria—a rare condition often requiring medical and therapeutic treatment and care—in accordance with the standards of care and clinical practice guidelines, the Ban prohibits Georgia parents from seeking and obtaining appropriate medical treatment for their children.

... [It] also violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment based on their sex and on their transgender status.

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

Court Refuses To Enjoin New York's Ban On Firearms In Places of Worship

In Goldstein v. Hochul, (SD NY, June 28, 2023), a New York federal district court refused to issue a preliminary injunction in a challenge to New York's 2022 Concealed Carry Improvement Act that bans carrying firearms in "sensitive locations," including "any place of worship or religious observation."  The suit, filed by an Orthodox Jewish congregation, its president, and Jewish residents of New York who say that they have carried handguns for self-defense in synagogues. The court rejected Second Amendment, First Amendment Free Exercise, Equal Protection, and void-for vagueness challenges to the law. Discussing plaintiffs' Second Amendment challenge, the court said in part:

Beyond the historical record of laws restricting the carrying of firearms in places of worship, there is also historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons....

The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense. However, the fact that these regulations existed suggests that legislatures have long exercised significant regulatory power over firearm carry, and individuals’ ability to carry firearms in houses of worship.

Responding to plaintiffs' Free Exercise and equal protection claims, the court said in part:

Plaintiffs’ claim that their religious practice is burdened by the Challenged Provision of the CCIA because they would prefer to worship while carrying a firearm does not establish a free exercise claim. Having a preference to worship while carrying a firearm is not a religious practice.....

The Challenged Provision applies to all individuals, regardless of their religious beliefs, practices, or identity. Individuals of all religions or no religion are forbidden from possession of firearms in places of worship.

Preliminary Injunction Issued Against Tennessee's Ban on Gender-Affirming Treatment for Minors

In L.W. v. Skrmetti,(MD TN, June 28, 2023), a Tennessee federal district court issued a preliminary injunction against enforcement of SB1 insofar as it bans health care personnel from providing or offering minors puberty blockers or hormone treatments for gender dysphoria. (Plaintiffs lacked standing to challenge the law's ban on gender-affirming surgery.) The court concluded that plaintiffs demonstrated a substantial likelihood of success on their due process claim, saying in part:

The Court ... agrees with Plaintiffs that under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children....

It similarly found that plaintiffs had demonstrated a substantial likelihood of success on their equal protection claim, saying in part:

Defendants’ argument that SB1 does not discriminate based on transgender status is unpersuasive....

The Court is satisfied that current precedent supports the finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause....

[T]he Court finds that SB1 discriminates on the basis of sex, which in turn provides an alternative basis for the application of intermediate scrutiny.

ACLU issued a press release announcing the decision. [Posting updated to clarify scope of holding.]

Court Issues Preliminary Injunction Against Kentucky Ban on Puberty Blockers and Hormonal Treatment for Minors

 In Doe v. Thornbury, (WD KY, June 28, 2023), a Kentucky federal district court issued a preliminary injunction barring the state from enforcing the portions of SB150 that prohibit health care providers from prescribing puberty blockers or testosterone, estrogen, or progesterone to minors suffering from gender dysphoria. The court held that the ban violates the equal protection rights of minors as well as parents' due process rights to make medical decisions for their children. CNN reports on the decision.

Certiorari Denied In Case Holding Charter Schools Are State Actors

Yesterday the U.S. Supreme Court denied review in Charter Day School, Inc. v. Peltier, (Docket No. 22-238, certiorari denied 6/26/2023). (Order List.) In the case, the U.S. 4th Circuit Court of Appeals sitting en banc in a 10-6 decision (full text of opinions) held that a publicly funded North Carolina charter school is a state actor and thus subject to the equal protection clause.  At issue was the school's promulgation of a dress code requiring female students to wear skirts.

Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest. 

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

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

Court Enjoins Enforcement of Florida's Ban on Treatment of Gender Dysphoria in Minors

In Doe v. Ladapo, (ND FL, June 6, 2023), a Florida federal district court issued a preliminary injunction barring Florida from enforcing against plaintiffs its ban on puberty blockers and cross-sex hormones for treating minors who have gender dysphoria. The court said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it. At least one defense expert also has admitted it....

Despite the defense admissions, there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham....

Addressing plaintiffs' equal protection challenge, the court said in part that "Drawing a line based on gender nonconformity—this includes transgender status—... triggers intermediate scrutiny." The court went on to say in part:

The record establishes that for some patients, including the three now at issue, a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. These patients and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban the treatment is not rationally related to a legitimate state interest. 

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest....

The defendants say the many professional organizations that have endorsed treatment of gender dysphoria with GnRH agonists and hormones all have it wrong. The defendants say, in effect, that the organizations were dominated by individuals who pursued good politics, not good medicine. 

If ever a pot called a kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine.

Human Rights Campaign issued a press release announcing the decision.

Court Reaffirms Refusal to Dismiss Case Challenging 1st-Grade Teacher's Gender Identity Instruction

In Tatel v. Mt. Lebanon School District (II), (WD PA, May 31, 2023), a Pennsylvania federal district court reaffirmed its prior decision and concluded that parents of first-grade students have asserted plausible claims that their due process and free exercise rights, as well as their rights to familial privacy and equal protection, were violated by a teacher who pursued her own agenda in discussing gender identity with young students.  The court said in part:

This case ... involves not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about transgender topics in Plaintiffs’ own children. ... [T]he allegations in this case go beyond mere reading of a few books. Here, the teacher allegedly pursued her agenda throughout the school year, including teaching first-graders that their parents may be wrong about their gender, telling one boy could dress like his mother, and telling the children to keep the teacher’s discussions about gender topics secret from their parents.... [I]t was the children’s own family and their own gender identity that Williams targeted. Plaintiffs allege that Williams targeted one child for repeated approaches about gender dysphoria despite, or because of, the parents’ beliefs.... It is reasonable to infer that Williams intended to influence the children’s own gender identity and to have at least one child become like the teacher’s transgender child.

In assessing plaintiffs' free exercise claim, the court said in part: 

Plaintiffs allege that Williams’ agenda about gender dysphoria and transgender transitioning conflicts with their sincerely held religious and moral beliefs that “human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one’s identity, and biological reality, as either male or female.”... Plaintiffs contend that Defendants deliberately supplanted the parents’ role to control the instruction of their young children about their gender identity in accordance with their religious values ... and adopted a de facto policy that Williams could continue to advocate her agenda to first-graders in the future without notice or opt out rights for the parents.... As noted, this case is not about teaching kindness or tolerance, but about a teacher’s agenda to instruct first-graders that their parents’ religious beliefs about their own children’s gender are or may be wrong.....

Volokh Conspiracy has additional discussion of the case.

Court OK's Police Department's Rejection of Religious-Themed Flags and Uniform Patches

In Sangervasi v. City of San Jose, (ND CA, May 22, 2023), a California federal district court dismissed a suit by a police officer William Sangervasi who challenged the police department's refusal to adopt his proposed patch and flag designs. The court explained:

In August 2019, as part of the region’s celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters....

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.... 

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” ... Mr. Sangervasi’s memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt.... Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael.... He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag.... Two days later... Mr. Sangervasi was placed on indefinite administrative leave.... On December 11, 2020, Mr. Sangervasi received a letter from Acting Chief Dave Knopf denying Mr. Sangervasi’s demand that the SJPD adopt Mr. Sangervasi’s patch and flag designs.

The court, rejecting plaintiff's free exercise, free speech and equal protection claims, held:

Mr. Sangervasi does not allege any burden on his sincere religious practice pursuant to a policy that is not neutral or generally applicable. Rather, he complains that, if the SJPD authorizes specialty uniform patches to be worn on a voluntary basis, it must allow him to wear religion-themed patches of his own design.... These allegations fail to state a claim for relief because the City has not created a public forum in which Mr. Sangervasi has a right to express any views, let alone those views that may be grounded in religious practice or belief. In the absence of such a forum and as discussed above, the SJPD’s patch designs amount to government speech and do not burden Mr. Sangervasi’s religious practice.