Indian Court Orders Wide-Ranging Protections For LGBTIA+ Community

In an unusual 107-page opinion earlier this month, a Justice of the Madras High Court in India handed down a wide ranging series of directives to be undertaken by various government agencies to protect the safety of the LGBTQIA+ community, and to eliminate prejudice against them.  In Sushma v. Commissioner of Police, (Madras High Ct., June 7, 2021), Justice Venkatesh set out at length the process he went through to educate himself on the challenges faced by the LGBTQIA+ community. The decision says in part:

[I]t is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof.

The case was brought originally by a lesbian couple seeking protection from their parents, and police with whom their parents had filed missing person complaints, interfering with their relationship. Jurist also reports on the decision.

Supreme Court Sides With Catholic Social Services In Its Refusal To Certify Same-Sex Couples As Foster Parents

The U.S. Supreme Court today in Fulton v. City of Philadelphia,  (Sup. Ct., June 17, 2021), held unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract with CSS to provide foster care services unless it agrees to certify same-sex couples as foster parents.  Chief Justice Roberts wrote the opinion of the court which was joined by five other justices, avoiding the question of whether to overrule Employment Division v. Smith. The Court said in part:

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.... CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so.... But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable....

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature....

[S]ection 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS.... But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U. S., at 884....

The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

Once properly narrowed, the City’s asserted interests are insufficient.

Justice Barrett filed a concurring opinion, joined by Justice Kavanaugh and (except for one paragraph) by Justice Breyer, saying in part:

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

Justice Alito, joined by Justices Thomas and Gorsuch filed a 77-page opinion concurring in the judgment, arguing that the Smith case should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito also filed an opinion concurring in the judgment and contending that Smith should be overruled.

CNBC reports on the decision. 

DOE Says Title IX Bans LGBT Discrimination

The U.S. Department of Education Office for Civil Rights yesterday issued a Notice of Interpretation (full text) extending Title IX's non- discrimination provisions to discrimination on the basis of sexual orientation or gender identity. This reverses a DOE interpretation issued by the Trump Administration just days before the change in Administrations. (See prior posting.) The new Interpretative memo states in part:

[T]he Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity....

Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.

The Interpretation notes in a footnote, however:

Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. § 1681(a)(3).

Deseret News reports on the DOE's action.

Hungarian Parliament Passes Law Banning Schools From Teaching About LGBT Issues

 AP reports that on Tuesday, Hungary's National Assembly adopted legislation (full text of law in Hungarian) that bans school sex education programs, as well as films and ads aimed at minors, from presenting information about non-heterosexual sexual orientation. It also bans presenting information about gender reassignment. The legislation began as a bill to battle pedophilia, but amendments expanded it to include anti-LGBT provisions. Fidesz, the conservative ruling party of Prime Minister Viktor Orban, introduced the legislation which passed by a vote of 157-1.  Opposition parties boycotted the voting session of parliament.

South Carolina City Bans Conversion Therapy for Minors

According to The State, yesterday the Columbia, South Carolina City Council, by a vote of 4-3, passed a ban on licensed professional therapists offering conversion therapy for minors. Violations will result in a $500 civil fine. The paper reports:

A number of people spoke on the conversion therapy ban during Tuesday’s [City Council] meeting. Eleven of the 14 speakers were against the measure, with several saying they believed it infringed on religious liberties and First Amendment rights. Several of the speakers against the ordinance were connected to Columbia International University, a Christian college in North Columbia.

[Councilman Howard] Duvall said the ordinance would not interfere with conversations between a pastor and a resident.....  "It is clearly aimed at licensed practitioners. Most of the pastors in South Carolina are not licensed practitioners licensed by the state of South Carolina."

By a vote of 6-1, Council also passed a resolution supporting statewide legislation outlawing conversion therapy for minors.

Michigan Governor Bans Use Of State Funds For Conversion Theapy

Yesterday, Michigan Governor Gretchen Whitmer issued an Executive Directive (full text) directing the Michigan Department of Health and Human Services to take action "to prohibit the use of state and federal funds for the practice of conversion therapy on minors." In the Executive Directive, Whitmer said in part:

The assumptions underlying the practice of conversion therapy are not supported by medicine or science. Being LGBTQ+ is not a disorder, disease, or deficiency. Treating it as such through conversion therapy is not only ineffectual, but may cause significant long-term harm, including anxiety, depression, internalized homophobia, lowered self-esteem, and self-blame, as well as alienation, loneliness, social isolation, loss of social supports, and suicidal behaviors.

It also called on other state agencies to explore what they can do to protect minors from conversion therapy. MLive reports on the Governor's action.

DOJ's Memo In Title IX Litigation Raises Controversy

As previously reported, in a class action filed in April, LGBTQ+ students enrolled at religious colleges that receive federal financial assistance sued the Department of Education challenging the constitutionality of the exemption for religious organizations from anti-discrimination requirements of Title IX.  Subsequently, three Christian universities filed a motion to intervene as defendants, contending that the Department of Education would not adequately defend the exemption. The government's memo in opposition to the motion to intervene (full text) in Hunter v. U.S. Department of Education, (D OR, filed 6/8/2021) has created controversy.  As reported by the Washington Post:

Some LGBTQ advocates were disturbed by the filing...,  saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally-funded schools to discriminate against LGBTQ people....

To others, including Biden supporters, the administration had no other option, since ... Title 9 ...exempts religion..... 

However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Department of Education and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”

... Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from . . . mounting extreme arguments." Stern said the religious exemption to Title 9 isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.

HHS Says Affordable Care Act Bars LGBTQ Discrimination In Health Care

The U.S. Department of Health and Human Services announced yesterday that its Office for Civil Rights will interpret the Affordable Care Act's anti-discrimination provisions as including discrimination on the basis of sexual orientation or gender identity. It said that this change from Trump Administration rules was made in light of the Supreme Court's recent Bostock decision. HHS also added that in enforcing these provisions, it will comply with the Religious Freedom Restoration Act and applicable court orders.

Students Sue Yeshiva University For Refusal To Recognize LGBTQ Organizations

Suit was filed this week in a New York state trial court against Yeshiva University by an LGBTQ student organization and four current and former students claiming that the university's continued refusal to recognize a student organization for LGBTQ students violates New York City's Human Rights Law. The complaint (full text) in YU Pride Alliance v. Yeshiva University, (NYCty. Sup. Ct., filed 4/26/2021) alleges in part:

[D]isparate treatment and the denial of these concomitant benefits to club recognition, solely based on Plaintiffs’ sex, sexual orientation, or gender identity, is not only harmful to the students, but also unlawful as it amounts to a failure to provide equal access to facilities in violation of New York City laws.

Washington Post, reporting on the lawsuit, sets out a portion of the university's response to the lawsuit:

Our LGBTQ+ students are our sons and daughters, brothers and sisters, family and friends. Our policies on harassment and discrimination against students on the basis of protected classifications including LGBTQ+ are strong and vigorously enforced. Our Torah-guided decision about this club in no way minimizes the care and sensitivity that we have for each of our students, nor the numerous steps the university has already taken.

LGBTQ+ Students Challenge Title IX Religious Institution Exemption

In a class action lawsuit filed earlier this week in an Oregon federal district court, 33 LGBTQ+ students enrolled at religious colleges that receive federal financial assistance challenge the constitutionality of the exemption in Title IX for educational institutions controlled by religious organizations.  The exemption applies if the non-discrimination provisions of Title IX would conflict with the organization's religious tenets. The complaint (full text) in Hunter v. U.S. Department of Education, (D OR, filed 3/29/2021) alleges that the Department of Education's refusal to enforce non-discrimination provisions against religious colleges:

leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.

Alleging equal protection and Establishment Clause claims, plaintiffs contend:

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.

NBC News reports on the lawsuit.

UPDATE: An amended complaint (full text) was filed on June 7, 2021).

USCIRF Reports On 10 Countries That Use Sharia To Justify Death Penalty For Same-Sex Relationships

This week, the U.S. Commission on International Religious Freedom issued a Fact Sheet on The Use of Shari’a as Religious Justification for Capital Punishment Against LGBTI Persons. It states in part:

There are 10 countries where consensual same-sex relationships are formally punishable by death, all of which justify denial of rights and personhood on official interpretations of Shari’a.

It lists those countries as: Iran, Saudi Arabia, Yemen, Nigeria, Somalia, Mauritania, United Arab Emirates, Qatar, Pakistan, Afghanistan.

Texas Human Rights Act Bars LGBT Discrimination

In Tarrant County College District v. Sims, (TX App., March 10, 2021), a Texas state appellate court, in a 2-1 decision, held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity. In the case, plaintiff, a community college employee, claimed that the college discriminated against her because she is a lesbian. The majority said in part:

In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05.

The majority also refused to dismiss plaintiff's claims under the Texas constitution. 

Justice Schenck filed an opinion dissenting in part, contending that Bostock does not control the interpretation of the state anti-discrimination statute. Human Rights Campaign issued a press release on the decision.

EEOC General Counsel Fired By Biden

Yesterday morning, President Biden, through an e-mail (full text) from the White House Office of Personnel, requested the resignation of Equal Employment Opportunity Commission General Counsel Sharon Gustafson. Gustafson was a Trump appointee. As pointed out by the Washington Post in its report on these developments:

Gustafson was confirmed by the Senate to a four-year position in August 2019. She had raised the hackles of civil rights, LGBTQ and women’s groups during her confirmation hearing, by what they saw as “evasive” answers she gave about the rights of LGBTQ workers.

In a lengthy letter to the President (full text) just hours after the request for her resignation, Gustafson refused to resign. Her letter reads in part:

I am transmitting with this letter my Work Group's "Religious Discrimination in Employment: General Counsel Listening Sessions Final Report." This report and a related press release were published on the EEOC's website on January 13, 2021. On February 4. 2021-- shortly after your inauguration-- the report and press release were removed from the EEOC's website.... I can only assume that my resignation would be followed by similar suppression of our work promoting religious freedom.

The White House Office of Personnel responded yesterday to Gustafson with a brief e-mail (full text) informing her that her employment was terminated as of 5:00 pm that day.

Washington Supreme Court Rejects Facial Challenge To Discrimination Exemption for Non-Profits

In Woods v. Seattle's Union Gospel Mission, (WA Sup. Ct., March 4, 2021), the state of Washington's Supreme Court rejected a facial challenge to an exemption in the state's anti-discrimination law for religious and other non-profit corporations. Plaintiff was denied employment by a Christian legal aid program for the homeless because he was in a same-sex relationship. The majority held that because reasonable grounds exist to distinguish non-profit corporations from others, the exemption does not, on its face, violate Article I, §12 of the state constitution that prohibits any law granting privileges or immunities which are not equally available to all. The majority concluded, however, that the law may be unconstitutional as applied to plaintiff in this case.  It held that courts should look to federal case law on the ministerial exception doctrine to determine this:

Here, Woods seeks employment as a lawyer with SUGM. SUGM has rejected his application because it maintains that all employees’ first duty is to minister. In order to balance Woods’ fundamental rights with the religious protections guaranteed to SUGM, we hold that article I, section 12 is not offended if WLAD’s exception for religious organizations is applied concerning the claims of a “minister” as defined by Our Lady of Guadalupe and Hosanna-Tabor.

Justice Yu filed a concurring opinion which was joined by Chief Justice Gonzalez. Justice Stephens filed an opinion dissenting in part, joined by Justice Fairhurst.

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.

Biden Issues Executive Order Calling For Agency Rules To Protect Against LGBTQ Discrimination

On Wednesday, President Biden issued an Executive Order (full text) calling on all federal agencies that administer statutes barring sex discrimination to review any of their regulations that do not assure that this protection extends to discrimination on the basis of gender identity and sexual orientation. The Executive Order begins with a broad policy statement:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

It also takes the position that the Supreme Court's recent Title VII Bostock decision applies equally to the sex discrimination bans in Title IX of the Education Amendments of 1972, the Fair Housing Act and the Immigration and Nationality Act. NBC News reports on the Executive Order.

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

Michigan Court of Claims: State Civil Rights Law Bans Gender Identity, But Not Sexual Orientation, Discrimination

In 2018, the Michigan Civil Rights Commission in Interpretive Statement 2018-1 concluded that:

as used in the Elliott Larsen Civil Rights Act “discrimination because of... sex” includes discrimination because of gender identity and discrimination because of sexual orientation.

Now in Rouch World, LLC v. Michigan Department of Civil Rights, (MI Ct. Cl., Dec. 7, 2020), the Michigan Court of Claims 

"discrimination because of sex under the ELCRA includes discrimination because of an individual’s “gender identity,” and thus Interpretative Statement 2018-1 is valid to that extent....

However, feeling itself bound by a prior state Court of Appeals decision, the court held:

discrimination because of an individual’s “sexual orientation” is not prohibited under the ELCRA. Whether enforcement of Interpretative Statement 2018-1, as modified by this opinion and order, would interfere with plaintiffs’ First Amendment rights to the free exercise of religion has not been sufficiently briefed to resolve at this juncture.

At issue in the case According to the Detroit News, Michigan's attorney general plans to support the Civil Rights Commission's full interpretation in an appeal.

Anti-Gay Proselytizers Lose Suit Against City

In Waldrop v. City of Johnson City,Tennessee, (ED TN, Nov. 30, 2020), a Tennessee federal district court dismissed a suit by several individuals who were distributing religious literature at a gay pride event. Plaintiffs claimed that their free speech and free exercise rights were infringed when they were required by police to move from the entrance to the park where the event was being held to a nearby sidewalk. The court said in part:

The evidence supports only the conclusion that the officers escorted Plaintiffs from Founders Park, and voiced any attendant warnings to them about their return there, in response to their obstruction of the entrance—a content-neutral reason for their removal. The record is simply without evidence showing that Lieutenant Peters or any other officer moved Plaintiffs away from Founders Park for any other reason, much less for the reason that the content of Plaintiffs’ message was offensive or disagreeable. To the contrary, the evidence establishes— beyond any genuine issue of material fact—that the officers allowed Plaintiffs’ message to endure within the festival’s event area for hours into the day, despite TriPride’s organizers’ clamors for the officers to extinguish it.

New Survey On Attitudes Toward LGBT Rights

The Public Religion Research Institute yesterday released polling results on the extent of support in the U.S. for same-sex marriage and LGBT anti-discrimination laws. The study finds that majorities of Americans favor allowing same-sex marriage, oppose allowing religiously affiliated agencies that receive taxpayer funding to refuse to accept qualified same-sex couples as foster parents, oppose religiously-based refusals to serve gays and lesbians, and favor allowing transgender individuals to serve in the armed forces. When examined by religious preference, only white evangelical Protestants had majorities at odds with the broader results.