Canadian Tribunal Finds Anti-Transgender Election Pamphlet Amounts To Illegal Discrimination

In Canada, the British Columbia Human Rights Tribunal last week held that a Christian activist violated the province's Human Rights Code when he circulated a pamphlet attacking a candidate for the province's Legislative Assembly because of her transgender status.  In Oger v. Whatcott, (BCHRT, March 27, 2019), the Tribunal held that William Whatcott's conduct amounted to unlawful hate speech and discrimination against transgender advocate Morgane Ogerunder.  At issue was the application of Section 7 of the Human Rights Code which prohibits publications that, among other things, indicate an intent to discriminate or which likely expose a person to hatred or contempt on the basis of their gender identity or expression. As described by the Tribunal:

Mr. Whatcott created a flyer entitled “Transgenderism vs. Truth in Vancouver‐False Creek” [Flyer]. In it, he called Ms. Oger a “biological male who has renamed himself… after he embraced a transvestite lifestyle”. He expressed a concern “about the promotion and growth of homosexuality and transvestitism in British Columbia and how it is obscuring the immutable truth about our God given gender”. He described being transgender as an “impossibility”, which exposes people to harm and constitutes a sin. Mr. Whatcott ended the Flyer with a call to action: do not vote for Ms. Oger or the NDP.

In its 105-page opinion, the Tribunal rejected Whatcott's freedom of expression and religion defenses, balancing the Charter of Rights and Freedoms against the objectives of human rights legislation. Toronto Star reports on the opinion.

Religious Exercise Challenge To School's Transgender Policy Moves Ahead

In Students and Parents for Privacy v. School Directors of  Township High School District 211, (ND IL, March 29, 2019), an Illinois federal district court refused to dismiss religious exercise claims by a group of students and parents who object to a high school's policy that allows transgender students to use rest room and locker rooms conforming to their gender identity.  Adopting plaintiffs' label of "compelled affirmation policy," the court held that plaintiffs had stated a claim under Title IX, the Illinois Religious Freedom Restoration Act and the First Amendment.  The court said in part:

It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children....

SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs.... 

[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the compelled affirmation policy is a bigot or intolerant.

The court however dismissed plaintiffs' claims of violations of the right to bodily privacy and the right to control the education of one's children.

DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Missouri Supreme Court Rules On Transgender and Sex Stereotyping Discrimination

In R.M.A. v. Blue Springs R-IV School District, (MO Sup. Ct., Feb. 26, 2019), the Missouri Supreme Court in a 4-2 decision held that a transgender male middle-school student stated a claim for sex discrimination under Missouri's Human Rights Act when he alleged that he was not permitted to use the boys' restrooms or locker room.

In Lampley v. Frost, (MO Sup. Ct., Feb. 26, 2019), a case involving complicated procedural issues, the Missouri Supreme Court reversed and remanded a lower court's dismissal of a case in which a gay man claims harassment and retaliation at work.  As summarized in a Court press release:

Five judges agree the circuit court’s judgment should be reversed and the case remanded. Five judges agree the employees sufficiently stated a claim for sex discrimination under the state’s human rights act. Three agree the claims here were based on sex stereotyping rather than sexual orientation; two believe the Court should not have considered whether sex discrimination can be proved by evidence of sex stereotyping. Six judges agree it is unnecessary to reach the issue of whether the state’s act covers claims of discrimination based on sexual orientation; one would hold the act does not extend to discrimination based on sexual orientation.

St. Louis Post Dispatch reports on the decision.

Supreme Court Allows Trump Administration's Ban On Transgenders In Military To Take Effect

In Trump v. Karnoski (Docket No. 18A625) and Trump v. Stockman (Docket No. 18627), (Order List), the U.S. Supreme Court today granted stays of preliminary injunctions issued by district courts, thus allowing the Trump Administration's policy barring most transgender individuals from enlisting in the the military to go into effect while constitutionality of the policy is litigated in appeals to the 9th Circuit and eventually in petitions for certiorari to the Supreme Court. Justices Ginsburg, Breyer, Sotomayor and Kagan would have allowed the district courts'injunction against implementing the policy to stand.   The Court also, without dissent, refused to grant certiorari before the Circuit Courts rule, in the same two cases, as well as in Trump v. Doe. (Docket Nos. 18-676 to 678). New York Times reports on the Supreme Court's action.

Colorado Bakery Can Move Ahead With Suit Over Non-Discrimination Laws

In Masterpiece Cakeshop Inc. v. Elenis, (D CO, Jan. 4, 2018), a Colorado federal district court held that the owner of a Colorado bakery may move ahead with his suit seeking injunctive relief against enforcement of the state's anti-discrimination laws. However the court dismissed plaintiffs' damage claims on immunity grounds.  Plaintiff Jack Phillips won a U.S. Supreme Court victory last year when the Supreme Court held that the Colorado Civil Rights Commission showed impermissible hostility toward his religious objections to designing a cake for a same-sex wedding ceremony.  While that case was pending, a different customer sought a cake to celebrate her gender transition. Phillips refused to make the cake that conveyed a message in conflict with his religious belief that gender is immutable. The Commission again issued a probable cause determination and the state filed a formal complaint against Phillips. In response Phillips filed this suit claiming that the Division's bullying of him violates his free exercise, free speech, due process and equal protection rights. Catholic News Agency reports on the decision.

Churches Win Exemption From Anti-Discrimination Ordinance

The Green Bay Press Gazette reports that on Friday a Wisconsin state trial court held that De Pere, Wisconsin's anti-discrimination ordinance infringes the free exercise rights of churches and that churches should not be considered public accommodations under the statute.The ordinance prohibits discrimination in housing, employment and public accommodations on the basis of sex, marital status, sexual orientation or gender identity, (See prior posting.)

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Professor Sues Over Requirement To Address Students Using Their Preferred Pronoun

Yesterday a philosophy professor at Shawnee State University in Portsmouth, Ohio filed suit against the trustees and administrators at the school charging that they have violated his free exercise and free speech rights in the enforcement of the University's policy barring discrimination on the basis of gender identity.  The complaint (full text) in Meriwether v. Trustees of Shawnee State University, (SD OH, filed 11/5/2018) complains that University officials enforce university policies to require faculty to use the pronoun preferred by a student when addressing the student. Plaintiff, Prof. Nicholas Meriwether, asserts in part in his complaint:

85. Dr. Meriwether’s Christian faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas.

86. Dr. Meriwether’s convictions concerning human nature, the purpose and meaning of life, and ethical standards that are to govern human conduct are drawn from the Bible.

87. Dr. Meriwether believes that God created human beings as either male orbfemale, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

88. Dr. Meriwether also believes he cannot affirm as true ideas and concepts that are not true, as this would violate Biblical injunctions against dishonesty and lying.

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

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

HHS Is Considering Eliminating Title IX Protection For Transgender Indivudials

The New York Times reports today that the Trump Administration is proposing another step to eliminate anti-discrimination protection for transgender individuals:

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times....

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

Court Continues Preliminary Injunction Against Trump's Policy On Transgender Military Service

In  Stockman v. Trump, (CD CA, Sept. 18, 2018), a California federal district court refused to dissolve a previously issued preliminary injunction barring enforcement of President Trump's August 2017 Memorandum that excludes transgender individuals from the military. The government argued that a subsequent March 2018 Presidential memorandum revoking the 2017 one and instead implementing a policy recommended by the Department of Defense mooted the earlier challenge. The court concluded however:

For the purpose of mootness, the controversy presented by the new policy is substantively the same as the controversy presented by the old policy. Transgender individuals will be disadvantaged “in the same fundamental way.”

The court went on to find that the transgender ban cannot survive intermediate scrutiny, rejecting the government's military readiness and unit cohesion arguments. MetroWeekly reports on the decision.

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Amicus Briefs Filed With SCOTUS In Case of Funeral Home's Firing of Transgender Employee

Several amicus briefs have been filed with the U.S. Supreme Court urging the Court to grant certiorari in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. Links to the briefs are available at SCOTUSblog.  In the case, the U.S. 6th Circuit Court of Appeals, rejecting the employer's religious freedom defense, held that a Michigan funeral home violated Title VII when it fired a transgender employee. (See prior posting.) Townhall has more on these developments.

Masterpiece Cakeshop Sues Colorado In New Religious Accommodation Dispute

In the wake of the Masterpiece Cakeshop decision by the U.S. Supreme Court in June, Masterpiece Cakeshop owner Jack Phillips is again entangled in litigation.  The complaint (full text) in Masterpiece Cakeshop, Inc. v. Elenis, (D CO, filed 8/14/2018) alleges that the Colorado Civil Rights Commission violated Phillips' free exercise, free speech, equal protection and due process rights when on July 2 it issued a Determination (full text) that Phillips violated the state's public accommodation anti-discrimination law by refusing to bake a birthday cake that celebrates a customer's gender transition.  The district court lawsuit alleges in part:

6.... [S]ome Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer.

7. Phillips declined to create the cake with the blue and pink design because it would have celebrated messages contrary to his religious belief that sex—the status of being male or female—is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed. A mere 24 days after Phillips prevailed in the Supreme Court, Colorado told him that he violated Colorado law by declining to create that cake. In so doing, the state went back on what it told the Supreme Court in its Masterpiece briefing—that its public accommodation law allows Phillips to decline to create cakes with pro-LGBT designs or themes.

ADF issued a press release announcing the filing of the lawsuit. Fox 31 News reports on the lawsuit.

IRS Grants Non-Profit Church Status To Lesbian Anti-Trans Organization

TaxProf blog and Forbes report on the recent decision by the Internal Revenue Service to grant 501(c)(3) non-profit status to the Pussy Church of Modern Witchcraft.  The IRS also granted the organization tax status as a church. PCMW describes itself as "a congregation of adherents to our female born, lesbian-feminist-based religions beliefs and traditions." It goes on to say "We expressly reject the concepts of gender identity, transgenderism, and gender as being meaningful to defining what a Woman or Girl is." [Thanks to Steven H.Sholk for the lead.]

No Free Exercise Violation In Teacher's Support of Transgender Student

In Leontiev v. Corbett School District, (D OR, Aug. 10, 2018), a Oregon federal district court dismissed a suit brought against a school district and a number of individuals by the mother of a transgender male high school student. The suit alleged that several individuals interfered with plaintiff's parental relationship in helping the student leave his home. It also alleged that one teacher violated plaintiff's First Amendment rights by disparaging her religion when she told a deputy sheriff that plaintiff and her husband were conservative Christians who were not supportive of the student's gender transition. The court said:

... [T]he Court can find no case, that supports the constitutional principle that an off-duty teacher who has never had a particular student in her class violates the Free Exercise Clause of that student’s parent when the teacher, off school premises, expresses her personal opinion, even if that expression is critical of the parent’s religious beliefs. If a public school teacher makes derogatory comments about a particular religion in a classroom in the presence of students, that teacher very well may have violated clearly established principles under the First Amendment, either in violation of the Establishment Clause or, perhaps, the Free Exercise Clause. But that is not what happened in this case....

Gym's Failure To Disclose Transgender Policy Violates Michigan Consumer Protection Law

In Cormier v. PF Fitness-Midland, LLC, (MI App., July 26, 2018), a Michigan appellate court in a case on remand from the Michigan Supreme Court held that the gym Planet Fitness violated provisions of the Michigan Consumer Protection Act when it failed to inform plaintiff that it had a policy of allowing members to use whichever locker room and rest room corresponds to the gender with which that person self-identifies. The court concluded that Planet Fitness violated MCL 445.903(1)(s), (bb), and (cc) which prohibit:

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.

In concluding that the failure to inform plaintiff of the policy was material, the court said:

After joining the gym, plaintiff saw an assigned male individual in the women’s locker room and then complained to an employee at the front desk and to defendants’ corporate office. Upon being informed of defendants’ unwritten policy on the matter, plaintiff verbally warned other women at the gym about it. Plaintiff’s actions indicate that she strongly preferred a locker room and a restroom in which individuals who are assigned biologically male are not present, and it is thus reasonable to infer that defendants’ failure to inform plaintiff of the unwritten policy affected her decision to join the gym.

A person who successfully sues under Michigan's Consumer Protection Act may recover actual damages or $250, whichever is greater, plus attorneys' fees. Liberty Counsel issued a press release announcing the decision.

3rd Circuit Refuses To Enjoin School's Accommodation of Transgender Students

In Doe v. Boyertown, (3d Cir., July 26, 2018), the U.S. 3d Circuit Court of Appeals in a revised panel decision refused to enjoin a Pennsylvania school district from allowing transgender students to use bathrooms and locker rooms consistent with their gender identities instead of  the sex they were assigned at birth. The court rejected privacy, Title IX and state tort claims, saying in part:

As we have already noted, we do not intend to minimize or ignore testimony suggesting that some of the appellants now avoid using the restrooms and reduce their water intake in order to reduce the number of times they need to use restrooms under the new policy. Nor do we discount the surprise the appellants reported feeling when in an intimate space with a student they understood was of the opposite biological sex. We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns. Moreover, as we have mentioned, those cisgender students who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.

Yesterday following the issuance of the revised panel decision, the full court denied an en banc rehearing in the case, with 3 judges dissenting from the denial. (Full text of order and dissent.) The dissenters argued:

The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex....

The Morning Call reports on the decisions.