11th Circuit En Banc: Exclusion of Sex-Change Surgeries from Health Care Coverage Is Not Facially Discriminatory Under Title VII

In Lange v. Houston County, Georgia, (11 Cir., Sept. 9, 2025), the U.S. 11th Circuit Court of Appeals, sitting en banc, in an 8-5 decision, held that a county's employee health insurance plan is not facially discriminatory under Title VII by reason of its exclusion of coverage for "sex change surgery." The case generated 8 opinions spanning 108 pages. The majority opinion relied in large part on the U.S. Supreme Court's decision in United States v. Skrmetti. The majority said in part:

The Supreme Court’s reasoning in Skrmetti applies equally here. The County’s policy does not pay for a sex change operation for anyone regardless of their biological sex....

Neither the Supreme Court nor this Court has held that transgender status is separately protected under Title VII apart from sex. And Bostock did not add transgender status, as a category, to the list of classes protected by Title VII. To the contrary, the Court expressly denied that it was answering any question other than “whether an employer who fires someone simply for being . . . transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex’” within the meaning of Title VII’s plain terms....

Although the plaintiffs’ claim in Skrmetti arose under the Equal Protection Clause, the Court expressly held that the state statute at issue did not discriminate based on transgender status under the same Title VII precedents that we must apply here....

In short, the County’s plan does not facially violate Title VII. The County’s plan draws a line between certain treatments, which it covers, and other treatments, which it does not. That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status.

Judge Newsome filed a concurring opinion, saying in part:

I write separately simply to emphasize that I don’t take either Skrmetti or today’s en banc opinion to collapse the separate analyses that apply to claims under Title VII and the Fourteenth Amendment’s Equal Protection Clause....

Judge Rosenbaum filed an opinion concurring in the judgment

... I haven’t found a meaningful way to distinguish Houston County’s healthcare plan—which excludes from coverage certain surgeries, but only if they involve (in the words of the plan) a “sex change” (a procedure one would have only to address gender dysphoria)—from the law at issue in Skrmetti.  So Skrmetti requires me to conclude that the plan doesn’t classify by sex.   

I say this with deep regret for three reasons.  First, ...  the record compellingly reveals that Houston County precludes sex-affirming surgeries for discriminatory reasons..... Second, most respectfully, Skrmetti’s conclusion that the law there didn’t discriminate by sex or transgender status ... conflicts with decades of Title VII jurisprudence....  And third, Skrmetti’s determination that the law there didn’t discriminate by sex or transgender status ... effectively imports the reasoning of Geduldig v. Aiello ... into Title VII jurisprudence.  But Congress expressly amended Title VII to reject the holding and reasoning of Geduldig....

Judge Jill Pryor, joined by Judges Jordan, Abudu, Kidd and Wilson, filed a dissenting opinion, saying in part:

The majority opinion concludes that the County health plan’s exclusion of medical care related to a “sex change” does not discriminate based on sex or transgender status because it merely “draws a line between certain treatments, which it covers, and other treatments, which it does not.” ... This is the exact same reasoning that both Congress and the Supreme Court rejected for Title VII claims....

The Skrmetti majority’s discussion of Bostock does not bind us. No Title VII claim was before the Supreme Court. Skrmetti therefore did not and could not decide whether an employer’s insurance plan that bases coverage of medical treatments on sex or transgender status violates Title VII. Nor did Skrmetti address the use of equal protection precedent in the Title VII context in commenting on Bostock.... Although we do not take lightly Supreme Court dicta, we simply are not free to follow it in the face of binding Supreme Court authority to the contrary. After all, “[t]he Supreme Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions and leave to that Court ‘the prerogative of overruling its own decisions.’”...

Judge Abudu filed a dissenting opinion, saying in part:

I write separately to acknowledge the ongoing cultural war in which this Court, like courts before us, has had to participate.  Our role is to ensure that, regardless of religious, political, or other ideologies, the law applies equally to all.  The majority’s decision, unfortunately, undermines that goal and sets us up for yet another episode in our Circuit’s legal history where the majority just gets the outcome wrong, and the short- and long-term implications of its flawed decision cannot be ignored....

The majority reaches its conclusion without acknowledging the elephant in the room—transgender rights have come to the forefront of debate in recent years, shining a necessary light on areas of society still rife with discrimination....

... [L]ike the early work of eliminating explicit sex- and gender based distinctions in the law, we only are tasked with reading Houston County’s healthcare exclusions to decide whether they, on their face, treat Deputy Lange worse because she is transgender, i.e., that her sex was the “but-for cause” of Houston County’s decision to deny her medical coverage.  The healthcare exclusions do just that.... 

Judge Wilson, joined by Judges Abudu and Kidd, filed a dissenting opinion, saying in part:

... Because the majority manipulates Bostock’s but-for test to obfuscate the discrimination apparent on the face of the plan, I dissent.... 

Georgia Recorder reports on the decision.

2nd Circuit: Christian School Wrongly Disqualified for Refusing to Play Against Team That Had Trans Athlete

In Mid Vermont Christian School v. Saunders, (2d Cir., Sept. 9, 2025), the U.S. 2nd Circuit Court of Appeals held that a Christian school was entitled to a preliminary injunction reinstating its membership in the Vermont Principal's Association. The court summarized its decision:

Mid Vermont Christian School forfeited a girls’ playoff basketball game to avoid playing a team with a transgender athlete.  The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs.  In response to the forfeit, the Vermont Principals’ Association (“VPA”) expelled the school from all state-sponsored extracurricular activities.  

Plaintiffs Mid Vermont and several students and parents sued, bringing a Free Exercise claim and seeking a preliminary injunction to reinstate the school’s VPA membership and for other relief.  The district court ... denied the motion.  We conclude that Plaintiffs are likely to succeed in showing that the VPA’s expulsion of Mid Vermont was not neutral because it displayed hostility toward the school’s religious beliefs; Plaintiffs are therefore likely to prevail on their Free Exercise claim.

MyNBC5 reports on the decision.

School Rules on Non-gendered Pronouns Do Not Violate Free Exercise or Free Speech Rights

In Hyland v. State Board of Education, (NJ App., Sept. 9, 2025), a New Jersey state appellate court rejected a 1st and 14th Amendment challenge to amended Board of Education rules that, among other things, eliminated gendered pronouns in the rules. The court said in part:

Hyland argues the State Board may not establish a "religion of secularism" by adopting amendments that define gender as "indeterminate," which can be decided based on the student's feelings, resulting in the treatment of comparable secular activity more favorably than religious exercise.  He further argues the amendments force students who adhere to a "Biblical worldview," to act and operate under a law that directly contradicts those beliefs, and the students or parents are not allowed to opt out of the imposition of those beliefs....

A fair reading of the amended chapter demonstrates the State Board does not seek to promote a "religion of secularism," nor does it create a constitutionally prohibited entanglement.  The students and parents retain the right to opt-out of any instruction related to health, family life education, or sex education or educational activity that violates their religious beliefs.... Thus, the amendments do not violate either the Free Exercise or Establishment Clauses, as they apply uniformly to all students and do not seek to regulate religious conduct or belief.,,,

We are satisfied that the record establishes there is no violation of the First Amendment free speech rights.  Here, the amendments to Chapter 7 do not regulate or target the speech of students or parents.  While the amendments define gender identity, they neither compel nor coerce students or parents to endorse this definition.  Nor do they prevent students or parents from publicly expressing a different view....

6th Circuit: Transgender Bathroom Rule Did Not Violate Objecting Parents' or Students' Free Exercise Rights

In Jane and John Doe No. 1 v. Bethel Local School District Board of Education, (6th Cir., Aug. 26, 2025), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of claims that a school's policy on use of communal bathrooms by transgender students violated the free exercise rights of Muslim and Christian students and their parents. The court dismissed as moot plaintiffs' request for a declaratory and injunctive relief because while the case was pending, the school changed its policy pursuant to a new Ohio law that mandated bathroom access based on biological sex. However, plaintiffs' claim for damages from past violations was not moot. Nevertheless, the court found no 1st Amendment violation, focusing on the Supreme Court's recent decision in Mahmoud v. Taylor. The court said in part:

The Supreme Court acknowledged that “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” ... But the Court situated Mahmoud in line with Wisconsin v. Yoder, ...  as an exception to the general rule because “[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” ...

This exception does not apply here.  The bathroom policy does not impose a burden “of the [] same character as the burden in Yoder.”...  Unlike the challenged state law in Yoder, which compelled Amish families to send their children to public or private schools, and the curricular requirement in Mahmoud, which required elementary school students to attend classes where certain LGBTQ+-inclusive storybooks that “unmistakably convey a particular viewpoint about same-sex marriage and gender” were taught, the bathroom policy was not an educational requirement or curricular feature, and the policy did not require students to use the communal restrooms.... [Single occupancy bathrooms were available to students.]

Because the policy was neutral and generally applicable, it is subject to rational basis review, which it survives....

On appeal, the parent plaintiffs specifically argue that the School District infringed on their right to direct the upbringing of their children by (1) modifying the School District’s bathroom operations, (2) increasing their children’s risk of physical danger, and (3) choosing not to answer questions about implementing the bathroom policy.  We are unpersuaded by their arguments, and thus, we affirm the grant of judgment on the pleadings on plaintiffs’ Fourteenth Amendment claim....

Judge Larsen filed an opinion concurring in the judgment but saying that the majority had read the Mahmoud case too narrowly. He said in part:

... [T]he ultimate question Mahmoud poses is whether a school policy “substantially interfere[s] with the religious development of the child or pose[s] a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child.”...  All sorts of non-curricular school rules—which aren’t clearly “educational”—can interfere with parents’ religious upbringing of their children.  Imagine, for example, a school that provides free school lunch to all students, regardless of income, to remove the stigma associated with accepting free or reduced-price meals.  If the school neither provided Kosher meals nor permitted parents to pack brown-bag lunches, that might well impose a Yoder-like burden on Jewish parents and students, even though the policy would neither be obviously “educational” nor involve the curriculum.  If the school cannot require Jewish students to read books “designed to” undermine their commitment to keeping Kosher, why would the school be able to more directly compel them to eat a grilled ham and cheese?...

... In this case, Bethel’s policy allowed religious students to “opt out” by using single-stall restrooms instead of the communal ones to which they objected.  That important fact distinguishes this case from both Yoder and Mahmoud....

Buckeye Flame reports on the decision.

Christian Families Challenge Foster Care Rules on Support of Transgender Children

Two families, asserting Christian religious beliefs, filed suit yesterday in a Massachusetts federal district court challenging on 1st and 14th Amendment grounds a policy of the Massachusetts Department of Children and Families that requires foster parents to agree that they will "[s]upport, respect, and affirm the foster child’s sexual orientation, gender identity, and gender expression." The complaint (full text) in Jones v. Mahaniah, (D MA, filed 9/3/2025), alleges in part:

3. Both families will provide a loving and respectful home for any child, including transgender, gay, or lesbian foster children. But that is insufficient for Massachusetts....

4. ... [T]he State requires the Joneses and the Schrocks to promise to use a child’s chosen pronouns, verbally affirm a child’s gender identity contrary to biological sex, and even encourage a child to medically transition, forcing these families to speak against their core religious beliefs. 

5. Second, DCF infringes on Plaintiffs’ free-exercise rights through a policy that is not neutral or generally applicable,,,,  A foster parent must promise in advance to use opposite-sex pronouns and encourage a hypothetical child’s gender transition, even if they never have and never will host a child who struggles to accept their natural body....

120. Because DCF compels applicants to speak and express the DCF’s preferred views on human sexuality while prohibiting speech expressing other views it regulates speech based on content and viewpoint, it engages in unconstitutional viewpoint discrimination....

134. 110 C.M.R. 7.104(1)(d) is not neutral nor generally applicable because it imposes special disabilities based on religious beliefs, categorically excludes people from foster-care licenses based on religious beliefs, prefers certain religious and secular beliefs over the Plaintiffs’ religious beliefs, and provides for categorical and individualized exemptions without extending an exemption to religious persons like Plaintiffs.

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

Pharmacists Sue for Religious Accommodation to Avoid Dispensing Gender-Affirming Drugs

Two Walgreens pharmacists filed suit last week in a Minnesota federal district court challenging the drug chain's refusal to accommodate their religious objections to dispensing drugs that facilitate gender transitions. Walgreens took the position that plaintiffs' long-standing arrangement to refer such prescriptions to other pharmacists to fill was now illegal under Minnesota law as administered by the state Board of Pharmacy.

The complaint (full text) (exhibits to complaint) in Scott v. Minnesota Board of Pharmacy, (D MN, filed 8/22/2025), alleges in part:

3. Walgreens was wrong about the law. Minnesota administrative rules require pharmacists to dispense or compound only those drugs that “may reasonably be expected to be compounded or dispensed in pharmacies by pharmacists.” Reasonable people understand that not every pharmacist or pharmacy sells every drug, for various reasons including supply shortages, insurance reimbursement rates, lack of demand in the community—or a pharmacist’s conscientious objections. 

4. Plaintiffs asked the State Board of Pharmacy to clarify that this is the correct interpretation of the Board’s rules. The Board refused, leaving Plaintiffs and other pharmacists like them in legal limbo and subject to adverse actions from employers like Walgreens. 

5. To any extent that Minnesota law does purport to require Plaintiffs to violate their religious convictions by dispensing or compounding certain drugs, it violates the Free Exercise Clause of the U.S. Constitution and the free exercise protections of Minnesota’s Constitution. Forcing individual pharmacists to violate their religious beliefs by dispensing drugs that are readily available from many other pharmacists is not narrowly tailored to advance any compelling government interest. Moreover, Minnesota permits many non-religious exceptions to any “must dispense” requirement, including for economic reasons and based on a pharmacist’s professional judgment about the risks and efficacy of a prescription. Refusing to allow religious accommodations therefore is neither neutral nor generally applicable.

KSTP News reports on the decision. [Thanks to Thomas Rutledge for the lead.]

School Counselor's Office Display of Anti-Trans Books Is Permissible Only When No Students Are in His Office

In Theis v. Intermountain Education Service Board of Directors, (D ORA, Aug. 20, 2025), a social worker employed by the district to administer standardized tests individually to students sued claiming his constitutional rights were violated when the district found that his display of two particular books in his office violated the district's bias policy. The district found that the display of the books-- titled He is He and She is She--constituted a hostile expression toward a person because of their gender identity. Plaintiff was ordered to stop displaying the books. 

The court concluded that the district's policy did not violate plaintiff's free exercise rights, saying in part:

... Plaintiff has failed to show that Defendant’s Speech Policy is not neutral. There is no indication that the ESB Policy restricts any religious practices because of their religious motivations. Indeed, the policy explicitly seeks to prevent discrimination or harassment based on religion. And even if the ESB Policy adversely impacted religious practices, it is addressing the legitimate concern of ensuring an open and welcoming school environment for all students and employees.

Plaintiff also has not shown that Defendants were “hostile” towards his religious beliefs....

The court however agreed in part with plaintiff's free speech claim, saying that "only his display when no students are present is protected under the First Amendment." It explained: 

When no students were present in Plaintiff’s office, the message of the books would not be reasonably attributable to IMESD, and the display could not press Plaintiff’s views on impressionable or captive students.

Court Again Upholds Idaho Law on School Restroom Use by Transgender Students

In Sexuality and Gender Alliance v. Critchfield, (D ID, Aug. 7, 2025), an Idaho federal district court refused to issue a preliminary injunction to bar enforcement of an Idaho statute that requires transgender students in Idaho public schools to use restrooms, changing rooms, and showers that correspond to their biological sex. The 9th Circuit had previously upheld the denial of a broad preliminary injunction barring enforcement of the statute. In this suit, plaintiffs ask for a narrow injunction applicable only to restrooms at Boise High School. Plaintiffs argue that Boise High School has allowed transgender students to use bathrooms consistent with their gender identity for years, and allowing enforcement now would upset the status quo. The court said in part:

Separating restrooms by biological sex has been common for centuries.... And for good reason—there are biological differences between men and women.... Those biological differences are deserving of privacy and S.B. 1100’s segregation of restrooms based on sex is related to that interest. It is not the Court’s role to determine whether S.B. 1100 is a perfect policy; the Court must only address whether it is “substantially related” to the State of Idaho’s interest in protecting student’s privacy. Because S.B. 1100 is substantially related to the State’s legitimate interest in privacy, the Court finds SAGA is unlikely to succeed on its Equal Protection claim....

The Ninth Circuit... concluded: “SAGA failed to meet its burden to show that the State had clear notice at the time it accepted federal funding that Title IX prohibits segregated access to the facilities covered by S.B. 1100 on the basis of transgender status.”... This conclusion applies with equal force to SAGA’s as-applied challenge. Accordingly, the Court finds SAGA is unlikely to succeed on its Title IX claim.

ADF issued a press release announcing the decision.

10th Circuit Upholds Oklahoma's Ban on Gender-Affirming Care for Minors

In Poe v. Drummond, (10th Cir., Aug. 6, 2025), the U.S. 10th Circuit Court of Appeals affirmed a trial court's refusal to preliminarily enjoin enforcement of an Oklahoma law that prohibits furnishing of surgical procedures, puberty blocking drugs or cross-sex hormones to treat gender dysphoria in minors.  Relying on the U.S. Supreme Court's decision in United States v. Skrmetti, the court rejected equal protection and parental rights challenges. The court said in part:

We conclude that Oklahoma’s enactment of SB 613 rationally relates to Oklahoma’s interest in safeguarding the physical and psychological well-being of minors in light of the debate among medical experts about the risks and benefits associated with treating a minor’s gender dysphoria with gender transitioning procedures.  We thus affirm the district court’s ruling as to Plaintiffs’ Equal Protection claim....

In sum, SB 613 does not violate the Equal Protection Clause of the Fourteenth Amendment because it discriminates based on age and medical purpose and satisfies rational basis review.  We also need not subject SB 613 to heightened scrutiny based on impermissible legislative purpose because no evidence exists that Oklahoma legislature enacted it as a pretext to invidiously discriminate against transgender minors....

We next determine whether the liberty interest—parents’ right to access gender transition procedures for their children—is so deeply rooted in our Nation’s history to establish a fundamental right.  After conducting “a careful analysis of the history of the right at issue,”... we conclude there is no deeply rooted tradition in parents’ right to access gender transition procedures for their children.

News On 6 reports on the decision.

7th Circuit: Jury Must Decide Whether Religious Accommodation Would Create Undue Hardship

In a Title VII case that has been in litigation for six years, in Kluge v. Brownsburg Community School Corp., (7th Cir., Aug. 5, 2025), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a district court's grant of summary judgment to the Brownsburg school district and sent the case back to the trial court for a jury to determine disputed facts. At issue is a music teacher's religious objections to following school policy that requires him to refer to transgender students by the names and pronouns that the students and their parents have asked that the school use. Initially the school accommodated the teacher by permitting him to address transgender students using only their last names. However, this led to student dissatisfaction and the accommodation was rescinded. The primary disputed facts are whether the accommodation created an "undue hardship" under the standard defined by the Supreme Court in its 2023 decision in Groff v. DeJoy, and whether the teacher's religious objections were sincere.  The majority said in part:

... [T]he record contains material factual disputes about whether the accommodation disrupted Brownsburg’s learning environment, precluding summary judgment to the school....

... [T]he complaints ...  all deal with the effects on the two students from Kluge’s use of the last-name-only practice. Nowhere do these documents support an inference that the students had a problem with Kluge’s religion or “the mere fact [of] an accommodation.”...  Instead, the complaints are leveled against the impacts on students and teachers, regardless of whether the accommodation was for religious or secular reasons. 

... [T]here is still a genuine material factual dispute about whether those complaints rose to an undue hardship on the school’s educational mission....

...  [A] genuine issue of material fact exists regarding Kluge’s sincerity. Even though a claimant’s sincerity does not hinge on whether he is “scrupulous in his [religious] observance,” it would still be premature to take this issue away from the jury on this question. ...

Judge Rovner filed a dissenting opinion, saying in part:

Until today, when confronted with a Title VII employment discrimination claim, we have deferred to an employer’s good-faith assessment of how an employee performed in the workplace..... Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer’s good-faith reasoning. In making employment decisions, ... employers will now have to consider not only how successfully an employee is performing his job as modified by a religious accommodation, but how a jury might second-guess its assessment in litigation years down the line. This is an untenable restraint on employers’ decision making. 

Today’s decision also burdens employers in a second important respect. Brownsburg successfully argued below that Kluge’s accommodation proved inconsistent with its mission, which is to provide a supportive learning environment for all of its students. Although the majority accepts this mission for present purposes, it also suggests that evidence of an employer’s mission must be limited to policies that are formally documented and adopted prior to any litigation. I think many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court....

See prior related posting. ADF issued a press release announcing the decision.

North Carolina Legislature Overrides Governor's Veto of Bill on Transgender Issues, Pornography and Religious School Opt-Outs

On Tuesday, the North Carolina legislature overrode the governor's veto of House Bill 805 (full text). The new law deals with a lengthy list of issues, including: (1) requiring recognition only of biological sex in state rules and policies; (2) requiring consent and age verification for appearance in, and procedures for removal of, online pornographic images; (3) prohibiting use of state funds for gender transition procedures; (4) extending statute of limitations for malpractice, and removing damage cap, in gender transition procedures on non-minors; (5) allowing parents to bar their children from checking out specific books from school libraries. The new law also provides:

Local boards of education shall adopt policies to allow a student or the student's parent or guardian to request that the student be excused from specific classroom discussions, activities, or assigned readings that the student, parent, or guardian believes would (i) impose a substantial burden on the student's religious beliefs or (ii) invade the student's privacy by calling attention to the student's religion.

Earlier this month, Governor Josh Stein had vetoed the bill based on his opposition to the provisions on transgender issues. His Veto Message (full text) reads in part:

The initial version of House Bill 805 protected people from being exploited on pornographic websites against their will. I strongly support that policy.... Instead of preventing sexual exploitation, the General Assembly chooses to engage in divisive, job-killing culture wars. North Carolina has been down this road before, and it is a dead end. My faith teaches me that we are all children of God no matter our differences and that it is wrong to target vulnerable people, as this legislation does. I stand ready to work with the legislature when it gets serious about protecting people, instead of mean-spirited attempts to further divide us by marginalizing vulnerable North Carolinians.

Catholic Vote reports on these developments.

Adoptive Parent Rule on Transgender Children Violates Plaintiff's Free Speech and Free Exercise Rights

 In Bates v. Pakseresht, (9th Cir., July 24, 2025), the U.S. 9th Circuit Court of Appeals held unconstitutional as applied to plaintiff Oregon's requirement that to be certified as an adoptive parent, a person must agree to respect and support an adopted child's gender identity and gender expression and use the child's preferred pronouns. Plaintiff contended that it violated her Seventh Day Adventist religious beliefs to use a child's preferred pronouns or take the child for gender transition medical appointments. In a 2-1 decision, the court agreed that the requirement violated plaintiff's free speech and free exercise rights. The majority, in a 50-page opinion, said in part:

We deal here with two vital such rights: the First Amendment’s protections for free speech and the free exercise of religion.  These rights work together, with “the Free Exercise Clause protect[ing] religious exercises, whether communicative or not,” and “the Free Speech Clause provid[ing] overlapping protection for expressive religious activities.”...  Fundamental as basic freedoms, these rights spring from a common constitutional principle: that the government may not insist upon our adherence to state favored orthodoxies, whether of a religious or political variety....

We hold that Oregon’s application of § 413-200-0308(2)(k) to Bates, in denying her certification to be an adoptive parent, triggers strict scrutiny for both her free speech and free exercise claims.  In Part A below, we explain why strict scrutiny applies to Bates’s free speech claim.  In Part B, we do the same for Bates’s Free Exercise Clause claim.  And in Part C, we explain why applying Oregon’s policy to Bates does not survive strict scrutiny.  Bates has therefore shown a likelihood of success on the merits of her claim that denying her certification under § 413-200-0308(2)(k) violates the First Amendment.

Judge Clifton dissented, saying in part in a 40-page opinion:

The only limitation imposed by the state in declining to approve her application to foster a child concerns her treatment of the child, not what she personally believes, how she speaks to the world, or how she practices her faith. Oregon should be permitted to put the best interests of the child for which it is responsible paramount in making the decision to place one of its children in the custody of a foster applicant. Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child’s self-determined gender identity, if that is something the parents have decided is important. Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given. 

Supreme Court Review Sought on Parents' Rights to Know of School's Social Transitioning of Their Child

 A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Foote v. Ludlow School Committee, (Sup.Ct., cert. filed 7/18/2025). In the case, the U.S. 1st Circuit Court of Appeals held (full text of opinion) that petitioners' parental right protected by the 14th Amendment were not infringed by a school Protocol requiring staff to use a student's requested name and gender pronouns in school without notifying parents of the request unless the student consents. The petition for review of the 1st Circuit opinion says in part:

Petitioners do not have a religious objection to their school district’s indoctrination and transition of their children without their knowledge. Theirs is a moral belief, backed by well-supported scientific opinion, that a so-called gender transition harms their children. But their constitutional rights to direct the upbringing of their children remain just as fundamental. The Court should grant the petition and make clear that parents’ fundamental rights do not depend on whether they are religious.

ADF issued a press release announcing the filing of the petition for review.

Christian Bookstore Challenges Colorado Anti-Discrimination Law

Suit was filed this week in a Colorado federal district court by a Christian bookstore challenging on free speech, free exercise, equal protection and due process grounds recent amendments to Colorado's Anti-Discrimination Act. The complaint (full text) in Doxa Enterprise, Ltd. v. Sullivan, (D CO, filed 7/16/2025), alleges in part:

2. Colorado recently passed HB25-1312 (the “Act”) and amended the Colorado Anti-Discrimination Act (“CADA”) to define “gender expression” to include “chosen name” and “how an individual chooses to be addressed.” The Act then declares that Coloradans have a right to access “public accommodations[] and advertising” free of discrimination on that basis— except if the requested language is “offensive” or made for “frivolous purposes.”  Under this revised CADA language, it is now illegal for public accommodations like independent bookstores to refer to transgender-identifying individuals with biologically accurate language in their publications and customer interactions. 

3. This puts CADA on a collision course with the First Amendment rights of Plaintiff Doxa Enterprise, Ltd (“Born Again Used Books” or the “Bookstore”), a Christian bookstore in Colorado Springs that sells Christian literature, homeschool curricula, and classics. The Bookstore also publishes a website and social media accounts to promote its Christian faith and products.

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

Justice Department Sues California Over Its Gender Identity Policy in School Sports

Last week, the Department of Justice sued California, alleging that it violates Title IX by permitting transgender girls to compete in girls' interscholastic athletics. The complaint (full text) in United States v. California Interscholastic Federation, (CD CA, filed 7/9/2025), alleges in part:

1. Across the State of California, girls must compete against boys in various sports pursuant to policies enforced by the California Department of Education (“CDE”) and the California Interscholastic Federation (“CIF”).  These discriminatory policies and practices ignore undeniable biological differences between boys and girls, in favor of an amorphous “gender identity.”  The results of these illegal policies are stark: girls are displaced from podiums, denied awards, and miss out on critical visibility for college scholarships and recognition.  In the words of the Governor of California, it is “deeply unfair” for girls to compete against boys. 

2. This discrimination is not only illegal and unfair but also demeaning, signaling to girls that their opportunities and achievements are secondary to accommodating boys.  It erodes the integrity of girls’ sports, diminishes their competitive experience, and undermines the very purpose of Title IX: to provide equal access to educational benefits, including interscholastic athletics.  Despite warnings from the United States Department of Education, Defendants continue to require California schools to allow boys to compete against girls.  The United States accordingly files this action to stop Defendants’ illegal sex discrimination against female student athletes....

26. Title IX and the Implementing Regulations use the term “sex” to mean biological sex; the term “sex” thus does not mean “gender identity.”...

47. The California Sex Equity in Education Act, Cal. Educ. Code § 221.5(f), referenced in the CDE’s “Gender Equity/Title IX” guidance, states in part:  “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”  Cal. Educ. Code § 221.5....

The Justice Department issued a press release announcing the filing of the lawsuit.

Cert. Granted in Challenge to Ban of Transgender Women on Women's Sports Teams

Yesterday, the U.S. Supreme Court granted review in two cases raising the issue of whether laws that bar transgender women from participating on women's sports teams in public schools and colleges violate Title IX or the 14th Amendment's Equal Protection Clause. (Order List). The cases are Little v. Hecox, (Docket No. 24-38, certiorari granted 7/3/2025) involving a challenge to Idaho's Fairness in Women's Sports Act, and West Virginia v. B.P.J., (Docket No. 24-43, certiorari granted 7/3/2025) involving West Virginia's Save Women's Sports Act. Links to all the briefs and pleadings in the Hecox case are available here. Links to all the briefs and pleadings in the West Virginia case are available here. SCOTUSblog reports on the Court's action.

11th Circuit: Florida Can Bar Transgender Teacher's Use of Preferred Pronouns to Refer to Herself in Classroom

In Wood v. Florida Department of Education, (11th Cir., July 2, 2025), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, held that a transgender woman teacher's right to free speech was not violated by a Florida statute that  prohibits her from using the title “Ms.” and the pronouns “she,” “her,” and “hers” in exchanges with her high school students during class time. The majority concluded that the teacher "cannot show, with respect to the expression at issue here, that she was speaking as a private citizen rather than a government employee." The majority said in part:

... [W]e needn’t—and don’t—consider whether Wood has a First Amendment right to use gendered identifiers or don a “she/her” pin when conversing with colleagues in the faculty lounge, or, for that matter, even whether she has a right to do those things in her classroom after the students have departed for the day....

When a public-school teacher addresses her students within the four walls of a classroom—whether orally or in writing—she is unquestionably acting “pursuant to [her] official duties.”  Interacting with students during class time, quite literally, is a teacher’s “official dut[y].”  We reiterate that our decision is a narrow one.  We hold only that when Wood identified herself to students in the classroom using the honorific “Ms.” and the pronouns “she,” “her,” and “hers,” she did so in her capacity as a government employee, and not as a private citizen....

Judge Jordan dissented, saying in part:

The preferred personal title and pronouns of a teacher are, like her name, significant markers of individual identity.  They exist outside of, and do not depend on, the school or the government for their existence.... 

The majority’s expansive application of the government speech doctrine essentially leaves the First Amendment on the wrong side of the schoolhouse gate.  As this case demonstrates, “the government speech doctrine [is being] used as a subterfuge for favoring certain private speakers over others based on viewpoint.” ...

The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status.

Supreme Court Upholds Tennessee's Ban on Gender Affirming Care for Minors

In United States v. Skrmetti,(Sup.Ct., June 18, 2025), the U.S. Supreme Court today by a vote of 6-3 upheld Tennessee's law that bars both hormonal and surgical gender transition procedures for minors. The case generated 5 separate opinions spanning 118 pages. Chief Justice Roberts' majority opinion held that the Tennessee law does not trigger heightened scrutiny. He said in part:

This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status. As we have explained, SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second....

... [T]here is a rational basis for SB1’s classifications. Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty....

Justice Thomas filed a concurring opinion, saying in part: 

This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.

Deference to legislatures, not experts, is particularly critical here. Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones, and surgical interventions, despite mounting evidence to the contrary. They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own. They have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.

Justice Barrett, joined by Justice Thomas, filed a concurring opinion, saying in part:

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class.... I write separately to explain why, in myview, it does not....

Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of “closely scrutiniz[ing] legislative choices” in all these domains....

Justice Alito filed an opi nion concurring in part, saying in part:

I do notjoin Part II–A–2 of the opinion of the Court, which concludes that SB1 does not classify on the basis of “transgender status.” There is a strong argument that SB1does classify on that ground, but I find it unnecessary to decide that question. I would assume for the sake of argument that the law classifies based on transgender status, but I would nevertheless sustain the law because such a classification does not warrant heightened scrutiny. I also do not join Part II–A–3 of the Court’s opinion because I do not believe that the reasoning employed in Bostock v. Clayton County ... is applicable when determining whether a law classifies based on sex for Equal Protection Clause purposes.

Justice Sotomayor filed a dissenting opinion, joined by Justice Jackson and joined in part by Justice Kagan, saying in part:

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it... Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims....

Justice Kagan filed a dissenting opinion, saying in part:

I take no view on how SB1 would fare under heightened scrutiny.... So I would both start and stop at the question of what test SB1 must satisfy. As JUSTICE SOTOMAYOR shows, it is heightened scrutiny...

SCOTUSblog reports on the decision.

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Sports Apparel Company Challenges Colorado's Public Accommodation Law Protection of Transgender Athletes

Suit was filed this week in a Colorado federal district court by an online athletic apparel company, "XX-YY Athletics," that promotes banning of transgender women from women's sports through logos on its apparel and through advertisements.  The company claims that Colorado's Anti-Discrimination Act violates the 1st and 14th Amendments when its public accommodation provisions declare that Coloradans have a right to access advertising that is free from discrimination on the basis of gender expression and chosen name. The complaint (full text) in Committee of Five, Inc. v. Sullivan, (D CO, filed 5/27/2025), alleges in part:

191. The most common way that XX-XY Athletics demonstrates why male competition in women’s sports is unfair or unsafe is by reference to specific transgender-identifying male athletes....

206. Although CADA prohibits XX-XY Athletics from speaking consistently with its view that sex is immutable, the law allows other businesses that also qualify as public accommodations to speak according to their view that sex can be changed.  

207. This distinction in treatment is based on a particular view that the business holds about human sexuality and gender identity....

222. The First Amendment’s Free Speech, Press, and Assembly Clauses protect XX-XY Athletics’ ability to speak, create, publish, sell, and distribute speech; to associate with others and with their messages for expressive purposes; to adopt and act on certain speech-related policies; to decline to associate with others and their message for expressive purposes; to decline to create, publish, sell, and distribute speech; to be free from content-based and viewpoint-based discrimination; and to be free from overbroad and vague restrictions on speech that give enforcement officials unbridled discretion....

225. As applied to XX-XY Athletics, CADA impermissibly discriminates against the company’s speech based on content and viewpoint by prohibiting it from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex.  

226.  As applied to XX-XY Athletics, CADA impermissibly inhibits the company’s ability to form expressive associations it desires to form and to avoid expressive associations it desires to avoid by requiring the company to refer to individuals by their preferred name, pronouns, and other terminology and prohibiting the company from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex....

The complaint also alleges that the Colorado law is void for vagueness and violates the Equal Protection clause. ADF issued a press release announcing the filing of the lawsuit.