Denial of Insurance Coverage For Gender Dysphoria Violates ACA

In Pritchard v. Blue Cross Blue Shield of Illinois, (WD WA, May 4, 2021), a Washington federal district court held that denying a transgender male insurance coverage for treatment of gender dysphoria violates the sex discrimination ban in the Affordable Care Act.  At issue was an exclusion in the Catholic Health Initiatives Health Plan that prevented a minor covered by his mother's health insurance from receiving an implant that delivers puberty-delaying hormones and a mastectomy.  The ACA incorporates the anti-discrimination provisions of Title IX. The court also rejected defendant's RFRA defense, concluding that RFRA only applies in suits in which the government is a party.

9th Circuit Hears Arguments On Idaho Ban Of Transgender Women In Sports

The U.S. 9th Circuit Court of Appeals on Monday heard oral arguments (video of full arguments) in Hecox v. Little, (5/4/2021).  In the case, an Idaho federal district court (full text of decision) in August 2020  held unconstitutional Idaho's law that bars transgender women from participating on women's sports teams. Yahoo News reports on the oral arguments.

Montana Makes It More Difficult To Obtain Transgender Name Change On Birth Certificates

Montana Governor Greg Gianforte recently signed Senate Bill 280 (full text) which provides in part:

The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed b y surgical procedure.

Metro Weekly reports on the new law.

New West Virginia Law Bans Transgender Women From Women's Competitive Athletic Teams

The Hill reports that West Virginia Governor Jim Justice yesterday signed into law HB 3293 (full text) which bars transgender girls or women from competing on women's athletic teams at public middle or high schools or at state colleges and universities. The ban is limited to teams where selection is based on competitive skill or the activity involved is a contact sport.

5th Circuit Remands Religious Medical Providers' Challenge To Anti-Discrimination Rules

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., April 15, 2021), the U.S. 5th Circuit Court of Appeals remanded to a Texas federal district court a challenge by religious medical providers to a 2016 Health and Human Services rule that prohibited discrimination on the basis of "termination of pregnancy" and "gender identity." The appeals court noted that since the district court decision, "the legal landscape has shifted significantly." It pointed out: 

HHS repealed the 2016 rule and finalized a new rule in 2020; the Supreme Court interpreted Title VII’s prohibition of “sex discrimination” to include gender identity...; two district courts entered preliminary injunctions against the 2020 rule....; President Biden issued an executive order declaring that his administration would apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination; and HHS is again considering a new rule....

The court said that on remand the district court should consider they type of relief that should be granted and whether the case is moot.

Christian College Sues HUD Over Interpretation of Fair Housing Act

Suit was filed last week in a Missouri federal district court challenging a Directive issued last month by the U.S. Department of Housing and Urban Development interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The 70-page complaint (full text) in The School of the Ozarks, Inc. v. Biden, (WD MO, filed 4/15/2021), in addition to claiming a number of procedural problems with the adoption of the Directive, alleges that it violates the 1st Amendment and the Religious Freedom Restoration Act. The complaint alleges in part:

1. This action challenges a federal agency directive that requires private religious colleges to place biological males into female dormitories and to assign them as females’ roommates. 

39. The Christian faith is an integral part of life at College of the Ozarks....

57. The College teaches human sexuality is a gift from God....

58. The College teaches that sex as determined at birth is a person’s God-given, objective gender, whether or not it differs from their internal sense of “gender identity,” and it bases this teaching on such Biblical passages as Genesis 1:27, Leviticus 18:22, Matthew 19:4, Romans 1:26–27, and 1 Corinthians 6:9–10.

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

Republican Arkansas Governor Vetoes Bill Banning Gender Transition Procedures [Update: Veto Override]

 As reported by NPR, Arkansas Republican Governor Asa Hutchinson yesterday vetoed Arkansas House Bill 1570 ("Save Adolescents From Experimentation (SAFE) Act") which prohibits physicians from providing gender transition procedures to minors. Hutchinson told reporters that the bill would set:

new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.

A majority of the Arkansas legislature can override the Governor's veto.

UDATE: On April 6, the Arkansas legislature overrode the Governor's veto by a vote of 71-24. (ABC News).

Biden Declaration of March 31 As "Transgender Day of Visibility"

Earlier this week, President Biden signed a Presidential Proclamation (full text) declaring March 31 as "Transgender Day of Visibility". The Proclamation reads in part:

Transgender Day of Visibility recognizes the generations of struggle, activism, and courage that have brought our country closer to full equality for transgender and gender non-binary people in the United States and around the world.  Their trailblazing work has given countless transgender individuals the bravery to live openly and authentically.  This hard-fought progress is also shaping an increasingly accepting world in which peers at school, teammates and coaches on the playing field, colleagues at work, and allies in every corner of society are standing in support and solidarity with the transgender community.

Virginia Public School Guidance On Transgender Students Is Challenged

Suit was filed yesterday in a Virginia state trial court challenging a guidance document titled Model Policies on the Treatment of Transgender Students In Virginia's Public Schools developed by the Virginia Department of Education (DOE). The guidance document calls for safe, supportive and inclusive school environments for transgender students. The lawsuit filed by a parent and two advocacy organizations contends that during the adoption process, the Department of Education failed to respond to a number comments raising constitutional and other legal objections to the proposed guidance document. The complaint (full text) in Family Foundation v. Virginia Department of Education, (VA Cir. Ct., filed 3/30/2021) alleges that the document violates free speech, free exercise, privacy, equal protection, and parental rights. Family Foundation issued a press release announcing the filing of the lawsuit. AP reported on the lawsuit.

South Dakota Governor Issues Executive Orders On Transgender Women In Sports After Vetoing Legislation On The Issue

On March 8, the South Dakota Legislature gave final passage to HB1217 which banned transgender women from participating on women's athletic teams or sports in schools and colleges in the state. It also included various enforcement provisions. On March 19, Governor Kristi Noem, instead of signing the bill, returned it to the legislature with a number of suggested changes. When the legislature failed to act on those changes, the Governor instead issued two executive orders to deal with the issue. Executive Order 2021-05 bans transgender girls from participation in girl's athletics in Grade K-12 public schools, but eliminates the causes of action and much of the paper work that was in HB1217. Executive Order 2021-06 calls for the Board of Regents to take the steps necessary within state law to implement a similar policy for colleges and universities controlled by the Board of Regents. CNN reports on the governor's actions.

6th Circuit: Prof Has 1st Amendment Right To Refuse To Call Transgender Student By Preferred Pronoun

In Meriwether v. Hartop, (6th Cir., March 26, 2021), the U.S. 6th Circuit Court of Appeals held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that the Professor address a transgender student by her preferred gender pronoun. The professor objected because of his Christian religious beliefs that God created human beings as either male or female at the time of conception and this cannot be changed. Upholding plaintiff's free speech rights, the court said in part:

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. …  In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern….

We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” … That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The court also reversed the trial court's dismissal of Prof. Meriwether's free exercise claim:

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.

Inside Higher Ed reports on the decision.

Mississippi Bans Transgender Women From Girls' and Women's Sports Teams

Yesterday Mississippi Governor Tate Reeves signed Senate Bill 2536 (full text) which prohibits women's or girl's athletic teams being open to transgender women.  The ban applies to any interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA. According to an AP report, in the signing ceremony for the bill, Gov. Tate said in part:

But for the fact that President Biden as one of his first initiatives sat down and signed an executive order — which, in my opinion, encourages transgenderism amongst our young people — but for that fact, we wouldn't be here today.

Executive Order Calls For Review To Assure No Discrimination In Education On Basis of Sex, Sexual Orientation or Gender Identity

Yesterday President Biden issued an Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity (full text). It calls for a review of existing federal regulations and guidance documents to assure "an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity. "

Colorado Bakery, In Court Again, Loses Attempt to Dismiss Transgender Discrimination Claim

 In Scardina v. Masterpiece Cakeshop, Inc.,(CO Dist. Ct., March 4, 2021), a Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings. In the current case, plaintiffs claimed that the bakery engaged in misleading advertising indicating that they would sell birthday cakes to LGBT individuals. The court dismissed the claim because "the most salient materials Plaintiff allegedly relied on are not advertisements," but were news articles and op-eds. However the court refused to dismiss plaintiff's Colorado Anti-Discrimination Act claim that she was discriminated against because of her transgender status when plaintiff refused to make a blue and pink cake celebrating her gender transition. The court said in part:

Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.... The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design. Therefore, if Defendants violated CADA here, they have not shown that their freedom of speech would be violated by holding them liable.

5th Circuit Hears Oral Arguments On Enjoining Health Care Anti-Discrimination Rule

 The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Franciscan Alliance v. Cochran. In the case, a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. (See prior posting.) As reported by Courthouse News Service, the appeal heard yesterday focused on whether the district court should also have issued an injunction against future enforcement of the rule. The district court declined to do so because the Trump Administration agreed that the rule was invalid. The original plaintiffs argued that the rule would force them to perform gender transition surgery and abortions in violation of their religious beliefs.

OCR and Justice Back Off Trump Administration Policy On Transgender High School Athletes

The Department of Education Office of Civil Rights (OCR) has signaled a that it is reversing the Trump Administration's policy that did not permit transgender women to compete in women's high school sports. AP reported yesterday that in a court filing in a Connecticut federal district court, OCR and the Justice Department withdrew their support for plaintiffs in a lawsuit that challenges Connecticut's policy of allowing sports participation consistent with an athlete's gender identity.  Those opposing Connecticut's policy argue that transgender women who were born male have physical strength advantages in women's sports. Also yesterday, OCR sent a letter (full text) to attorneys for several Connecticut school districts saying that it is withdrawing a letter giving notice of impending enforcement that was sent by the Trump Administration. OCR says that the interpretation of Title IX in the Trump Administration letter "should not be relied upon in this or any other matter."

Biden Executive Order Permits Transgender Individuals To Serve In Military

Yesterday President Biden issued an Executive Order (full text) reversing the Trump Administration's 2018 transgender military service ban. In his remarks at the signing of the Executive Order, President Biden said in part:

this is reinstating a position that previous commanders and — as well as the Secretaries have supported.  And what I’m doing is enabling all qualified Americans to serve their country in uniform, and essentially restoring the situation as it existed before, with transgender personnel, if qualified in every other way, can serve their government in the United States military.

NPR reports on the Executive Order.

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

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

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

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

Transgender Health Care Mandate Violates RFRA Rights of Catholic Entities

In Religious Sisters of Mercy v. Azar, (D ND, Jan. 19, 2021), a North Dakota federal district court in a 57-page opinion, granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of transgender anti-discrimination rules that require them to provide or provide insurance coverage for transgender transition procedures. The court concluded that the anti-discrimination rules violate plaintiffs free exercise rights under RFRA. Becket Law has more background on the case.

DOE Says Bostock Decision Does Not Apply To Title IX

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

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

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

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

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

Disagreeing with two Circuit Court opinions, the memo states:

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

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