New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual". 

Kansas Teacher Sues Over Requirement To Use Students' Preferred Pronouns

 CNN reported last week on a lawsuit filed by a Fort Riley, Kansas middle school teacher who was disciplined for refusing to call a transgender student by the student's preferred name and pronouns. The complaint alleges in part:

Any policy that requires Ms. Ricard to refer to a student by a gendered, non-binary, or plural pronoun (e.g., he/him, she/her, they/them, zhe/zher, etc.) or salutation (Mr., Miss, Ms.) or other gendered language that is different from the student's biological sex actively violates Ms. Ricard's religious beliefs.

Legal Responses Continue To Texas Ban On Gender Transition For Minors

 As previously reported, last month Texas Attorney General Ken Paxton in an Attorney General Opinion concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law. Building on this opinion, Governor Greg Abbott sent a letter to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion. As those investigations began, numerous legal developments followed.

On March 2, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Guidance on Gender Affirming Care which read in part:

Section 1557 protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.... [I]f a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.

In response, the state of Texas filed an amended complaint (full text) in its pending lawsuit against the federal government (State of Texas v. EEOC, ND TX filed 3/9/2022)  challenging this Guidance.

Meanwhile, in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), a Texas state trial court granted a temporary restraining order providing: "Defendants are immediately enjoined and restrained from taking any actions against Plaintiffs based solely on the Governor’s letter and DFPS statement ... as well as Attorney General Paxton’s Opinion...." The state Court of Appeals in Abbott v. Jane Doe, (TX App., March 9, 2022), held that the TRO was not an appealable order. Texas Tribune reports on some of these developments.

Court Issues TRO Preventing Enforcement Of Texas Governor's Order On Gender Transition Treatment For Minors

As reported in an ACLU press release, earlier this week a Texas state trial court in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), issued a temporary restraining order barring enforcement against the named plaintiffs of Texas Gov. Greg Abbott's order to investigate for child abuse parents who facilitate gender reassignment treatment for minors. (See prior posting.) The court said in part:

[T]he Court finds Plaintiffs will suffer irreparable injury unless Defendants are immediately restrained.... Jane Doe has been placed on administrative leave at work and is at risk of losing her job and ... Jane, John and Mary Doe face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.... [I]f placed on the Child Abuse Registry, Jane Doe could lose the ability to practice her profession and both Jane and John Doe could lose their ability to work with minors and volunteer in their community.

The Court further finds that Plaintiff Mooney could face civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions. If she does not comply with Defendants’ orders, Dr. Mooney could face immediate criminal prosecution, as set forth in the Governor’s letter.

The court set a temporary injunction hearing for March 11.

Texas AG and Governor Say Gender Transition Of Minors Can Constitute Child Abuse

On Feb. 18, Texas Attorney General Ken Paxton in Attorney General Opinion No. KP-401 concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law.  The 13-page Opinion states in part:

To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code....

Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm....

To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined “female genital mutilation” and made such act a state jail felony.... While the Legislature has not elsewhere defined the phrase “genital mutilation”, nor specifically for males of any age, the Legislature’s criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation—potentially including gender reassignment surgeries—could constitute “abuse” under the Family Code’s broad and nonexhaustive examples of child abuse or neglect.

On Feb. 22, Texas Governor Greg Abbott sent a letter (full text) to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion.  the Governor said in part:

Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.... There are similar reporting requirements and criminal penalties for members of the general public....

Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.

Washington Post and Axios report on these developments.

South Dakota Governor Signs Bill Barring Transgender Women On Women's Sports Teams

Yesterday, South Dakota Governor Kristi Noem signed Senate Bill 46 (full text) which prohibits transgender women from participating in women's sports teams or events in South Dakota schools and colleges.  The ban includes intramural and club events as well as inter-school competitions. It also extends to any accredited school, not just to public schools; to events sponsored by any activities association or organization; and to colleges under control of the Board of Regents or Board of Technical Education. NBC News reports on the governor's action.

Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision. 

8th Circuit Hears Oral Arguments In Religious Challenge To Health Care Transgender Anti-Discrimination Rules

On Wednesday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Religious Sisters of Mercy v. Becerra. (Audio of full oral arguments.) In the case, a North Dakota federal district court granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of anti-discrimination rules that require them to provide (or provide insurance coverage for) transgender transition procedures. Aleteia has an extensive report on the oral arguments.

Magistrate Recommends Dismissing Religious Objections To School's Teaching Transgender Understanding

In Jones v. Boulder Valley School District RE-2, (D CO, Oct. 4, 2021), a Colorado federal magistrate judge recommended dismissing a suit by parents of three elementary school students who contended that their free exercise and equal protection rights, as well as their parental rights to control the upbringing of their children, were violated when the school instituted a program to teach tolerance and understanding of transgender individuals that conflicted with the parents religious beliefs.

Plaintiffs ... emphasize that all they want is proper advance notice and the ability to opt-out of transgender programming as provided for by Colorado law....  The problem is that the federal constitution does not mandate advance notice or the ability to opt out of particular classes or programs, and especially not from particular classroom discussions. The federal constitution protects religious children and families by ensuring that a state cannot punish them if they choose to educate their children outside the public system, whether at home or at areligious school. But the federal constitution gives parents no First Amendment or due process right to direct to what is taught in the schools based on their own personal religious beliefs, nor does the federal constitution mandate the right to a religious "opt-out" option from particular classes or specific programming. From the federal constitutional perspective ..., it is up to the local school district to decide what is taught and at what age....

A Notice of Settlement was filed with the court on Nov. 15, and the case was terminated.

Transgender Students Sue Their High School For Gender Recognition

Suit was filed in an Indiana federal district court this week by two transgender male high school students against their school. The complaint (full text) in B.E. and S.E. v. Vigo County School Corp., (SD IN, filed 11/8/2021) alleges in part:

Defendants’ failure to recognize the plaintiffs as male and to allow them to use male restrooms and the male locker room and to require that they be addressed by the names and pronouns consistent with their male gender violates both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments Act of 1972....

Los Angeles Blade reports on the lawsuit.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Catherine Lhamon Confirmed By Senate To Head DOE's Office For Civil Rights

On Wednesday, the United States Senate confirmed the nomination of Catherine Lhamon to be Assistant Secretary for Civil Rights at the U.S. Department of Education.  The vote was 51-50, with Vice-President Harris casting a tie-breaking vote. This returns Lhamon to a position she held under the Obama administration. According to Education Week:

During her first tenure under Obama, Lhamon oversaw the office when it helped draft 2016 guidance to schools directing them to allow transgender students to use facilities like restrooms and locker rooms that matched their gender identity.

Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Texas Sues EEOC Over Interpretation of Transgender Rights

The state of Texas this week filed suit in federal district court challenging an EEOC Guidance document (full text) issued in June interpreting the application of the Supreme Court's Bostock decision to rights of transgender employees under Title VII.  The complaint (full text) in State of Texas v. EEOC, (ND TX, filed 9/20/2021), contends that the EEOC's interpretation of requirements for  usage of bathrooms, dress codes and pronoun usage misstates the law, violates the First Amendment and was adopted without following proper procedures. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.

20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit. 

Virginia Supreme Court Sides With Teacher Who Spoke Against School's Transgender Policy

In Louden County School Board v. Cross, (VA Sup. Ct., Aug. 30, 2021), the Virginia Supreme Court upheld a preliminary injunction issued by a trial court in a suit by a teacher who had been suspended because of his remarks at a school board meeting. Tanner Cross, an elementary school physical education teacher, at a school board meeting spoke in opposition to a proposed policy on transgender students which, among other things, required school staff to use a student's chosen name and gender pronouns. Cross told the board, in part:

I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The Supreme Court said in part:

The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children. However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.

ADF issued a press release announcing the decision.

Another Challenge To Ban On Transgender Discrimination In Health Care

Last week, the American College of Pediatricians, the Catholic Medical Association and an individual physician filed suit in a Tennessee federal district court challenging as a violation of the Religious Freedom Restoration Act, as well as of free speech and freedom of association protections, rules and interpretations of the Affordable Care Act that prohibit discrimination by medical providers on the basis of gender identity. The Obama Administration originally adopted the prohibition; the Trump Administration reversed the prohibition; and the Biden Administration returned to the discrimination ban.  In the meantime, challenges proceeded through the courts. Now, the complaint (full text) in American College of Pediatricians v. Becerra, (ED TN, filed 8/26/2021), alleges in part:

Two courts have already recognized that this mandate is illegal and enjoined it in favor of plaintiffs in those cases. Franciscan Alliance, Inc. v. Becerra...; Religious Sisters of Mercy v. Azar.... But both injunctions protect only the plaintiffs in those cases, not the plaintiffs or their members here.

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

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]