HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections

The Department of Health and Human Services yesterday adopted final rules (full text of Release adopting rules) which narrow LGBTQ non-discrimination protections.  Previously, 45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs or in administering funded programs. The newly amended rule instead reads:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

Previously 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead reads:

HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its 86-page release adopting the rule, HHS said that enforcing the prior rule may violate the Religious Freedom Restoration Act. ADF issued a press release announcing the adoption of the new rules. Americans United issued a press release criticizing the new rule.

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

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

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

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

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

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

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

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

SCOTUS Denies Review In Transgender Bathroom Case

The U.S. Supreme Court today denied review in Parents for Privacy v. Barr, (Docket No. 20-62, certiorari denied 12/7/2020). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. (See prior posting.) The petition for certiorari had raised privacy, religious and parental rights, and Title IX claims.

Funeral Home Settles Transgender Employment Discrimination Claim After SCOTUS Loss

In June, the U.S. Supreme Court's Bostock decision held that Title VII of the 1964 Civil Rights Act which prohibits discrimination in employment "because of sex" protects gay, lesbian and transgender individuals. The decision covered three separate employment discrimination cases, one of which was R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC. That case involved a discrimination claim by a transgender employee.  Yesterday the Detroit News reported that a Michigan federal district court has approved a settlement in the case:

U.S. District Judge Sean Cox on Monday approved the terms of the settlement between the estate of Stephens, who died in May, and her former employer, R.G. & G.R. Harris Funeral Homes, which going forward is prohibited from firing employees on the basis of transgender status.

Under the terms of the agreement, Harris Homes is to pay $130,000 to Stephens' estate, including $63,724 in back pay with interest and $66,276 in damages.

The consent decree also says Harris Homes, which operates three funeral homes in southeast Michigan, must pay another $120,000 to the ACLU Foundation for costs and plaintiff attorney fees.

The settlement also contains other remedial provisions.

6th Circuit Hears Oral Arguments In Case of Prof Who Refused To Use Student's Preferred Pronouns

The U.S. 6th Circuit Court of Appeals on Thursday heard oral arguments in Meriwether v. Hartop.(Audio of full oral arguments.) In the case, an Ohio federal district court dismissed a lawsuit by a college philosophy professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The professor refused to address a transgender student using the student's preferred gender identity title and pronouns, and instead used only the student's name. (See prior posting.) Portsmouth Daily Times reports on the oral arguments.

New Survey On Attitudes Toward LGBT Rights

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

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

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

DoD Issues New Document On Transgender Military Service

Last week (Sept. 4), the Department of Defense issued DoD Instruction 1300.28 setting out its current policy on enlistment and service in the military by transgender individuals. The new document tracks a policy memo issue last March. (See prior posting.) The new Instruction provides in part:

Transgender Service members and applicants for Military Service [who enlisted on or after April 12, 2019 or who are newly diagnosed with gender disphoria] ... must adhere to the standards associated with their biological sex. Transgender Service members may consult with a military medical provider, receive a diagnosis of gender dysphoria, and receive mental health counseling, but may not obtain a gender marker change or serve in their preferred gender. A Service member may be retained without a waiver provided that a military medical provider determined that gender transition is not medically necessary to protect the health of the individual. Continued service is contingent on the Service member not seeking gender transition, the Service member being willing and able to serve in his or her biological sex, and the Service member being able to meet applicable deployability requirements.

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

Teacher's Suit Over Pronouns Used In Addressing Transgender Student Is Remanded To State Court

 In Vlaming v. West Point School Board, (ED VA, Aug. 19, 2020), a high school teacher sued when he was fired for refusing to abide by school policy that required him to refer to a transgender male student using male pronouns. The suit was originally brought in a Virginia state court (see prior posting), but was removed to federal court by defendants. The suit contended that the school board's decision to fire the teacher violated his rights under the Virginia constitution and various state statutes. In this decision, the Virginia federal district court held that the case was incorrectly removed, and remanded the case to state court because it raises only state law issues.

Court Enjoins Trump Administration Roll Back of Transgender Protections In Health Care

 In Walker v. Azar, (ED NY, Aug. 17, 2020), a New York federal district court enjoined the Trump Administration's roll back of anti-discrimination rules under the Affordable Care Act and Title IX. The roll back eliminated protections for LGBTQ individuals, and in particular for transgender persons. Citing the Supreme Court's recent Bostock decision, the court stayed the new rules' definition of discrimination on the basis of sex.  The court said:

As a result, the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” currently set forth in 45 C.F.R. § 92.4 will remain in effect.

Politico reports on the decision.

23 States Sue HHS Over Rollback of Anti-Discrimination Protections In Health Care

Attorneys general representing 22 states and the District of Columbia filed suit yesterday challenging the Trump Administration's recently-adopted rules under the Affordable Care Act and under Title IX which roll back anti-discrimination provisions protecting, among others, transgender individuals and those who have accessed abortion services. The complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 7/20/2020), contends that the new rules deny equal protection of the laws and that their adoption was in violation of various provisions of the Administrative Procedure Act. Courthouse News Service reports on the lawsuit. New York's Attorney General issued a press release announcing the filing of the lawsuit.

Transgender Man Sues Catholic Hospital For Refusing Hysterectomy

A suit filed in a Maryland federal district court last week raises the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center is a state actor for purposes of the 1st and 14th Amendments.  The corporation acquired St. Joseph Hospital in 2012 and continued to operate it under Catholic Directives for healthcare.  This resulted in the hospital refusing to allow a scheduled hysterectomy on a transgender man undergoing treatment for gender dysphoria.  The complaint (full text) in Hammons v. University of Maryland Medical System Corporation, (D MD, filed 7/16/2020). alleges in part:

Defendants are instrumentalities of the State of Maryland and subject to the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. But, in violation of those constitutional obligations, Defendants operate University of Maryland St. Joseph Medical Center as a Catholic institution, guided by “Catholic health care values” and bound by the “Ethical and Religious Directives for Catholic Health Care Services” established by the U.S. Conference of Catholic Bishops (the “Catholic Directives”)....

By purchasing the St. Joseph hospital and signing an agreement to operate the hospital as a Catholic institution and in accordance with the Catholic Directives, UMMS has violated the Establishment Clause by, among other things, (a) creating an impermissible fusion of governmental and religious functions; (b) impermissibly delegating government authority to be exercised in accordance with religious criteria; (c) impermissibly endorsing religion; (d) taking government action that has the primary purpose and effect of advancing religion; (e) creating unconstitutional governmental entanglement with religion; (e) favoring one set of religious beliefs over others; and (f) impermissibly coercing individuals to act in accordance with particular religious beliefs.

ACLU issued a press release announcing the filing of the lawsuit. Washington Post reports on the lawsuit. [Thanks to Scott Mange for the lead.]

Suit Challenges Rollback of Health Care Anti-Discrimination Rule

Suit was filed today in a New York federal district court by two transgender women of color challenging the Department of Health and Human Services' recent rule revisions that roll back health care anti-discrimination coverage for gay and transgender individuals. The complaint (full text) in Walker v. Azar, (ED NY, filed 6/26/2020), alleges in part:

2. The 2020 Rule directly contravenes the Supreme Court of the United States’ recent holding in Bostock v. Clayton Cty., Georgia ... (June 15, 2020), that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity, including transgender status, or sexual orientation.

3. If allowed to take effect, the 2020 Rule will directly threaten the ability of members of the LGBTQ community to access medically necessary, potentially life-saving medical and health care by removing clear prohibitions against discrimination. And even if members of the LGBTQ community are able to access such health care, the 2020 Rule puts them at grave risk of inadequate care wrought with discrimination solely on account of their identities, which the 2020 Rule makes permissible.

Human Right Campaign issued a press release announcing the filing of the lawsuit and providing additional background.

Suit Challenges Roll-Back of Health Care Protections For Transgender Individuals

Suit was filed yesterday in the D.C. federal district court challenging the Trump Administration's recent rule change that rolled back health care anti-discrimination protection for transgender individuals. The complaint (full text) in Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, filed 6/22/2020) alleges in part:

[T]he Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral beliefs from the identified statutes in Section 1557 [of the Patient Protection and Affordable Care Act] and other statutes, including the Religious Freedom Restoration Act ... which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities, and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith....

HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to “enhance and protect the health and well-being of all Americans” and to “provid[e] for effective health and human services.”

 The Hill reports on the filing of the lawsuit.

Supreme Court: Title VII Bans LGBT Discrimination

The U.S. Supreme Court today in a 6-3 decision in Bostock v. Clayton County, Georgia, (Sup. Ct., June 15, 2020), held that the provisions of Title VII of the 1964 Civil Rights Act which prohibit discrimination in employment "because of sex" protect gay, lesbian and transgender individuals.  In an opinion written by Justice Gorsuch, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, the court said in part:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito filed a dissent, joined by Justice Thomas, saying in part:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.”  And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added)…. 

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Justice Kavanaugh also filed a dissent, saying in part:

Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.

The Court's opinion covered three cases, Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes. Religion News Service reports on the decision.

HHS Adopts Final Rule Rolling Back Transgender and Abortion Protections In Health Care

The Department of Health and Human Services today adopted a final rule that rolls back health care anti-discrimination coverage in federally supported activities and programs. In 2016 by the Obama Administration expanded protections for transgender individuals and for those who had accessed abortion services. The 344-page adopting Release (full text) reversing those changes explains:

The 2016 Rule’s definition of discrimination “on the basis of sex” encompassed discrimination on the basis of gender identity (“an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female”). In line with that definition, the 2016 Rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity. The same definition also encompassed discrimination on the basis of “termination of pregnancy” without incorporating the explicit abortion-neutrality language of 20 U.S.C. 1688 (which some commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of proof on providers to justify offering gynecological or other single-sex medical services. All of these are essentially legislative changes that the Department lacked the authority to make.

Responding to comments submitted on the Rule in its proposed form, the Release says in part:

The U.S. government has taken the position in Harris and other relevant litigation that discrimination “on the basis of sex” in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity. The Department shares that position and is permitted to issue regulations on the basis of the statutory text and its best understanding of the law and need not delay a rule based on speculation as to what the Supreme Court might say about a case dealing with related issues....

The Department does not condone the unjustified denial of needed medical care to anyone, and believes that everyone, regardless of gender identity or sexual orientation, should be treated with dignity and respect. The Department must interpret Congress’s purpose in passing the ACA by reading that statute’s plain text. The ACA sought to expand access to healthcare and healthcare coverage through some means but not others: in particular, Congress saw fit to incorporate into the ACA certain nondiscrimination protections, and not others. For example, in the unlikely event that a healthcare provider were to deny services to someone based solely on his or her political affiliation, the Department would not be able to address such denial of care under Section 1557. Under this final rule, OCR is committed to no less than full enforcement of the prohibitions on discrimination that Congress included in Section 1557, without exceeding the statutory text. Unlike other bases of discrimination, the categories of gender identity and sexual orientation (as well as political affiliation) are not set forth in those statutes.

Bloomberg Law reports on the new rule.

Parents Sue School District Over Its Transgender Policy

A group of parent filed suit this week against the Madison, Wisconsin school district challenging the district's policy on transgender students.  The complaint (full text) in Doe I v. Madison Metropolitan School District, (WI Cir. Ct., filed 2/18/2020) contends that the district's policy violates state constitutional provisions protecting parental rights and their free exercise of religion. The complaint describes the district's policy as follows:

The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent. Even more, the Madison School District directs its teachers and staff to deceive parents by reverting to the child’s birth name and corresponding pronouns whenever the child’s parents are nearby.

The complaint goes on to allege:

As a direct result of their religious beliefs, if these Plaintiffs’ children ever experience gender dysphoria, they would not i mmediately “affirm” whatever beliefs their children might have about their gender, but would instead remind them that they were “fearfully and wonderfully made,” see Psalm 139:14, and seek to help them identify and address the underlying causes of the dysphoria and learn to accept and embrace their God-given sex.

... At the same time, Plaintiffs w ill never stop loving their children, or love them any less, no matter what they believe about their gender.

LGBTQ Nation reports on the lawsuit.

Prof Loses Fight Against School Rules On Transgender Discrimination

In Meriwether v. Trustees of Shawnee State University, (SD OH, Feb. 12, 2020), an Ohio federal district court judge adopted a magistrate's recommendation and dismissed a lawsuit by a college professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The philosophy professor refused to address a transgender student using the student's preferred gender identity title and pronouns. Instead he used only the student's last name. The court said in part:

[The faculty member's] speech-- the manner by which he addressed a transgender student-- was not protected by the First Amendment.  Further, he did not plead facts sufficient to state a claim for a violation of his right to free exercise of religion ... or for a violation of his rights to due process or equal protection.

Metro Weekly reports on the decision.

9th Circuit OK's School's Policy On Transgender Students

In Parents for Privacy v. Barr, (9th Cir., Feb. 12, 2020) the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. The court issued a summary along with its full opinion, saying in part:

 [T]here is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.....  [T]he Student Safety Plan provided alternative options and privacy protections to those who did not want to share facilities with a transgender student, even though those alternative options admittedly appeared inferior and less convenient....

... [T]the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.