Illinois Appeals Court Upholds $220,000 Damage Award For Denying Transgender Employee Correct Restroom Access

In Hobby Lobby Stores, Inc. v. Sommerville, (IL App., Aug. 13, 2021), an Illinois state appellate court upheld the Illinois Human Rights Commission's award of $220,000 in damages against Hobby Lobby for violating the Illinois Human Rights Act by refusing to allow a transgender woman employee to use the woman's restroom. The court said in part:

Hobby Lobby argues that the Commission misunderstood the Act, improperly conflating “sex” with “sexual orientation.” Specifically, it argues that it limited access to its bathrooms based on sex, not gender identity, and that the Act permitted it to do so. It also argues that “sex” means “reproductive organs and structures,” and thus Sommerville (who has not had a surgical vaginoplasty or labiaplasty) is of the male sex...

Hobby Lobby contends that an individual's “sex”—the status of being male or female—is an immutable condition. However, the plain language of the Act does not support this conception. There is simply no basis in the Act for treating the “status” of being male or female as eternally fixed....

[T]he record establishes that Sommerville's sex is unquestionably female. She has undergone years of effort and expense to transition, and she appears to be and comports herself as a woman. Of even greater significance, her status of being female has been recognized not only by the governments of this state and the nation but also by Hobby Lobby itself, all of which have changed their records to acknowledge her female sex....

Reason reports on the decision.

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

Catholic Hospital's Refusal To Allow Gender Dysphoria Procedure Violates ACA Discrimination Ban

In Hammons v. University of Maryland Medical System Corporation, (D MD, July 28, 2021), a transgender man challenged the refusal by University of Maryland St. Joseph Medical Center to allow his physician to perform a hysterectomy as part of his treatment for gender dysphoria. The hospital, while a subsidiary of the University of Maryland state system, adheres to Catholic religious doctrine. The court dismissed plaintiff's Establishment Clause and Equal Protection Clause claims on 11th Amendment state sovereign immunity grounds. However the court concluded that plaintiff had stated an adequate claim of sex discrimination that is prohibited by §1557 of the Affordable Care Act.

Court Enjoins Enforcement of West Virginia's Ban On Transgender Girls Being On Girl's Sports Teams

In B.P.J. v. West Virginia State Board of Education, (D WV, July 21, 2021), a West Virginia federal district court granted a preliminary injunction to an 11-year old transgender girl who was kept off the girl's cross country and track teams under a West Virginia statute that bars students whose biological sex is male from girls' teams. The court found a likelihood of success on plaintiff's equal protection and Title IX claims, saying in part:

B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams....

As applied to B.P.J., Section 18-2-25d is not substantially related to protecting girls’ opportunities in athletics or their physical safety when participating in athletics. I find that B.P.J. is likely to succeed on the merits of her equal protection claim.

Courthouse News Service reports on the decision.

California Law Barring Misgendering Of Long Term Care Residents Violates 1st Amendment

In Taking Offense v. State of California, (CA App., July 16, 2021), a California state appellate court held that a provision in California's Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights violates free speech rights.  At issue is a provision that prohibits staff members of long-term care facilities from willfully and repeatedly referring to a resident by anything except the person's preferred name or pronoun. The court said in part:

[W]e conclude the pronoun provision ... is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.... [T]he law criminalizes even occasional, isolated, off-hand instances of willful misgendering-- provided there has been at least one prior instance--without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.

The court however rejected an equal protection challenge to a different provision of the law that requires room assignments in long term care facilities to be made on the basis of a resident's gender identity, unless a transgender resident requests otherwise.

Judge Hull filed a concurring opinion discussing the right of intimate association. Judge Robie also filed a concurring opinion.

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.

Court Enjoins Statute Requiring Warning About Restroom Access

In Bongo Productions, LLC v. Lawrence, (MD TN, July 9, 2021), a Tennessee federal district court issued a preliminary injunction against enforcement of a recent Tennessee statute that requires businesses which allow individuals to use rest rooms consistent with their gender identity to post a sign by each rest room stating: "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation of the restroom." The court concluded that the statute violates plaintiffs' First Amendment free speech rights by compelling speech. The court said in part:

[T]here is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose....

The defendants are right that, as the Supreme Court has held, strict scrutiny typically does not apply to laws compelling commercial actors to disclose “purely factual and uncontroversial information about the terms under which [their] services will be available.”...

The Supreme Court has expressly recognized that “sexual orientation and gender identity” are, generally speaking, “controversial subjects.”...

[P]eople on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of “controversy” works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.

Gay City News reports on the decision.

Alaska Homeless Shelter Challenges City's Public Accommodation Law

Last week, an Anchorage, Alaska women's homeless shelter filed suit in an Alaska federal district court contending that the city's recently amended public accommodation law that requires it to house transgender women violates the shelter's 1st and 14th Amendment rights.  The law prohibits discrimination on the basis of sex or gender identity. The complaint (full text) in Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, filed 6/30/2021), says in part:

Defendants insist Hope Center’s religious beliefs— specifically, its beliefs about sexuality and gender—are discriminatory and deserving of punishment. In Defendants’ view, providing charitable shelter exclusively to vulnerable women is unlawful sex and gender-identity discrimination....

Because of its religious beliefs and desire to create a safe and secure environment, Hope Center allows only biological women to stay overnight at the shelter....

No Hope Center policy prohibits biological women who identify as men from accessing the shelter....

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

Supreme Court Denies Review In Transgender School Bathroom Case

With Justices Thomas and Alito dissenting, the U.S. Supreme Court today denied review in Gloucester County School Board v. Grim, (Docket No. 20-1163, certiorari denied 6/28/2021). (Order list.)  In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that a Virginia school board violated the equal protection clause and Title IX in refusing to allow a transgender male to use the boys' school restrooms. CNN reports on the denial of certiorari.

NY Governor Signs Gender Recognition Act

Yesterday, New York Governor Andrew Cuomo signed the Gender Recognition Act (full text of legislation).  The press release announcing the signing summarized the legislation:

The legislation (S.4402-B/A.5465-D) allows New Yorkers to use "X" as a non-binary sex designation on New York State driver's licenses. It also ensures that New Yorkers will be able to have their gender identity on official documents and provides protections to reduce discrimination against nonbinary and transgender New Yorkers by permitting name change and sex designation changes to be sealed more easily. Finally, the legislation will provide New Yorkers the ability to amend their birth certificates and use a designation of mother, father, or parent for the first time.

Louisiana Governor Vetoes Ban On Transgender Women Playing On Girls' Sports Teams

The Louisiana governor's office announced yesterday that Gov. John Bel Edwards has vetoed SB156, the Fairness In Women's Sports Act (full text), saying in part:

The bill ... sought to prevent transgender girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. Gov. Edwards issued the following statement:

As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue.

Louisiana Illuminator reports on the Governor's action.

VA Will Offer Gender Confirmation Surgery

AP reports that at a PRIDE event in Orlando on Saturday, Veterans Affairs Secretary Denis McDonough announced that the VA is moving to offer gender confirmation surgery to transgender veterans:

McDonough said in prepared remarks that the move was “the right thing to do,” and that it was part of an effort to overcome a “dark history” of discrimination against LGBTQ service members. The move is just the first step in what’s likely to be a years-long federal rulemaking process to expand VA health benefits to cover the surgery, but McDonough said the VA will use the time to “develop capacity to meet the surgical needs” of transgender veterans.

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.

Baker Violated Public Accommodation Law In Refusing To Sell Gender Transition Cake

Scardina v. Masterpiece Cakeshop, Inc., (CO Dist. Ct., June 15, 2021), is the latest installment in lawsuits against the owner of a Lakewood, Colorado bakery who refuses to furnish cakes that violate his religious beliefs.  Here, a transgender woman sought to order a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:

Mr. Phillips ... claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions.... He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings.....  

The court concluded that defendants violated the Colorado Anti-Discrimination Act, and that the law does not infringe defendants' free speech or free exercise rights:

Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female....

The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.....

A press release from ADF says that the decision will be appealed.

College Seeks Injunction Pending Appeal To 8th Circuit In Suit Against HUD's Transgender Policy On Student Housing

In February of this year, the Department of Housing and Urban Development issued a Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. This meant, among other things, that colleges could not discriminate against transgender individuals in access to student housing. College of the Ozarks filed suit challenging the Directive as a violation of its religious freedom rights. (See prior posting.) A Missouri federal district court refused to issue a TRO or a preliminary injunction, denied an injunction pending appeal, and dismissed the case as non-justiciable on the ground that the Directive is a non-binding policy statement.  Now the College has filed a motion with the U.S. 8th Circuit Court of Appeals seeking an injunction pending appeal. The School of the Ozarks, Inc. v. Biden, (8th Cir., filed 6/11/2021). (Full text of memorandum in support of the motion.) ADF issued a press release announcing the filing of the motion.

Suspension of Teacher Who Objected To Transgender Policy Is Enjoined

In Cross v. Louden County School Board, (VA Cir. Ct., June 8, 2021), a Virginia state trial court issued a temporary injunction ordering the Louden County School Board to reinstate a teacher who was suspended for speaking at a school board meeting in opposition to proposed policies that would require teacher to address students using pronouns that conform to their gender identity.  The Board was also ordered to remove its ban on plaintiff's accessing school grounds. The court concluded:

Plaintiff's speech and religious content are central to the determination made by Defendants to suspend Plaintiff's employment.

ADF issued a press release announcing the decision.

Suspended Teacher Who Opposed Policy On Transgender Students Sues

Suit was filed this week in a Virginia state trial court seeking a temporary restraining order and preliminary injunction to require the Loudon County School Board to reinstate Bryon Cross, a teacher who was suspended for comments he made at a public school board meeting. The Motion and Memorandum in Support (full text) in Cross v. Loudon County School Board, (VA Cir. Ct., filed 6/1/2021) contend that Cross' free speech and free exercise rights were violated when he was placed on administrative leave for opposing a proposed policy that would require teachers to address students using the student's preferred pronoun. At the school board meeting, Cross said 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.

ADF issued a press release announcing the filing of the law suit.

Florida Governor Signs Law Barring Transgender Women From Women's High School and College Teams

Yesterday Florida Gov. Ron DeSantis signed SB 1028 (full text) into law. (Press release from Governor.) Section 12 of the law enacts the "Fairness in Women's Sports Act" which bans transgender women from competing on women's sports teams sponsored by public high schools or colleges. The Act provides in part:

(b) Athletic teams or sports designated for males, men, or boys may be open to students of the female sex.

(c) Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex.

(d) For purposes of this section, a statement of a student’s biological sex on the student’s official birth certificate is considered to have correctly stated the student’s biological sex at birth if the statement was filed at or near the time of the student’s birth.

The Act gives a civil cause of action to students or schools injured by a violation of the Act. 

Court Denies Injunction Against HUD's Fair Housing Act Interpretation Of Sex Discrimination

According to the Springfield News-Leader, after a 2½-hour hearing on Wednesday, a Missouri federal district court judge refused to issue a temporary restraining order or preliminary injunction against enforcement of a Department of Housing and Urban Development Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The challenge was brought by College of the Ozarks, a Christian college that objects to housing transgender females in women's dormitories. (See prior posting.) The judge said that enjoining HUD would not protect the school from liability in a suit by a student who alleges  discrimination.