Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Mattis Will Take Time Implementing Trump's Policy On Transgenders In Military

Yesterday Secretary of Defense Jim Mattis issued a Statement (full text) on the manner in which he intends to implement President Trump's recent Memorandum barring enlistment of transgender individuals in the military and calling for a study of how to deal with transgender individuals currently serving. Mattis said in part:

Our focus must always be on what is best for the military’s combat effectiveness leading to victory on the battlefield.  To that end, I will establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president’s direction.  Panel members will bring mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.  The panel will assemble and thoroughly analyze all pertinent data, quantifiable and non-quantifiable.... 

Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction.  In the interim, current policy with respect to currently serving members will remain in place. 

Preliminary Injunction Denied To Students Opposed To Transgender Bathroom Access Policy

In Doe v. Boyertown Area School District, (ED PA, Aug. 25, 2017), a Pennsylvania federal district court refused to issue a preliminary injunction to bar a school district from continuing its year-old practice of allowing transgender students to use the bathrooms and locker rooms corresponding to their gender identity. Plaintiffs are students who claim that their right to privacy, as well as Title IX, are violated by the school's policy. According to the court:

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

In a 142-page opinion the court held that plaintiffs had no shown that they are likely to succeed on the merits, saying in part:

The plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs.... 

WFMZ-TV News reports that an appeal is planned.

Suit Challenges Trump Ban On Transgender Individuals In Military

Yesterday three individuals and two advocacy groups filed a federal lawsuit challenging the constitutionality of the Trump Administration's recently implemented policy on transgender individuals serving in the military.  The complaint (full text) in Karnoski v. Trump, (WD WA, filed 8/28/2017) summarizes the lawsuit:

5. In the evening of Friday, August 25, 2017, President Trump followed up on his tweets and implemented an official federal policy of discrimination against transgender individuals in military service .... Among other things, President Trump has mandated that the U.S. military return to its earlier policy and practice of discrimination against transgender people, including by discharging them. He has also maintained and extended the current bar on accession into the military of individuals known to be transgender.... Last, he has singled out for adverse treatment the health care needs of transgender service members.

6. Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important, or even rational justification.

Lambda Legal announced the filing of the lawsuit.

Trump Implements Continued Ban On Transgender Enlistment In Military

Yesterday President Trump issued a Presidential Memorandum (full text) implementing his previously announced intent to bar enlistment of openly transgender individuals in the U.S. military and to authorize the discharge of those already serving.  This action prevents the change in policy initiated by the Obama administration from taking effect.  President Trump's Memorandum reads in part:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects....

The Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, shall:

 (a)  maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing; and

 (b)  halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex....

As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.

Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

4th Circuit Remands Transgender Bathroom Case

In Grimm v. Gloucester County School Board, (4th Cir., Aug. 2, 2017), the U.S. 4th Circuit Court of Appeals remanded to a Virginia federal district court a high-profile Title IX case on transgender rights, instructing the district court to determine whether the case has become moot.  At issue is whether a school board policy that required students to use rest rooms that correspond to their biological sex rather than their gender identity violates Title IX or the equal protection clause.  Previously the Supreme Court had granted certiorari, but when the Trump Administration withdrew Title IX guidance that had been issued by the Obama Administration, the Supreme Court remanded the case to the 4th Circuit for further consideration in light of that action. (See prior posting.) This past June, plaintiff graduated high school, so defendants contend that the case is now moot.  Plaintiff says he might still attend alumni or community events at the school.  It is also uncertain whether the school's bathroom policy extends to alumni as well as current students.  The 4th Circuit says that this requires further factual development by the district court. Reuters reports on the decision.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

DOE Issues New Instructions On Transgender Students' Rights Under Title IX

As previously reported, in February the Trump Administration withdrew controversial Obama Administration's Guidance documents on rights of transgender students under Title IX.  The withdrawn documents called for transgender students to have access to sex-segregated bathrooms and locker rooms consistent with their gender identity.  On June 6 the Department of Education's Office of Civil Rights issued a memo (full text) setting out new "Instructions to the Field re Complaints Involving Transgender Students."  The new Memo emphasizes that withdrawal of the Obama Administration guidance documents "does not leave students without protections from discrimination, bullying or harassment."

The Memo provides that DOE may open an investigation in various situations, including cases in which gender-based harassment has created a hostile environment for a transgender student.  The Memo then sets out examples:

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes of a transgender student created a hostile environment....

Liberty Counsel, a conservative Christian advocacy organization, this week issued a press release criticizing DOE's new Memo, saying in part:

“Title IX does not require a school district or teacher to call students by false gender pronouns,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex. Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVoss to end this new policy,” said Staver.

Canada's Parliament Adds Transgender Protections To Discrimination and Hate Crime Laws

Canada's Parliament last week gave final passage to Bill C-16 (full text). The bill adds "gender identity or expression" to Canada's Human Rights Act and to the Hate Propaganda provision of Canada's Criminal code.  The bill comes into force when it receives Royal Consent.  Christian Post reports on the bill and responses to it.  Canada's Justice Minister says:

The purpose of this legislation is to ensure that everyone can live according to their gender identity and express their gender as they choose. It will protect people from discrimination, hate propaganda and hate crimes.

A spokesman for Canada's Campaign Life Coalition, however, contends:

Mark my words, this law will not be used as some sort of 'shield' to defend vulnerable transsexuals, but rather as a weapon with which to bludgeon people of faith and free-thinking Canadians who refuse to deny truth.

7th Circuit Upholds Transgender Student's Bathroom Rights

In Whitaker v. Kenosha Unified School District, (7th Cir., May 30, 2017), the U.S. 7th Circuit court of Appeals affirmed a district court's grant of a preliminary injunction requiring a Wisconsin high school to permit 17-year old Ash Whitaker, a transgender male, to use the boys' rest rooms.  Summarizing its holding, the court said in part:

Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex‐stereotyping theory. Further, because the policy’s classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim. The School District has not provided a genuine and exceedingly persuasive justification for the classification.

Rejecting the school's privacy arguments, the court said in part:

What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction.... A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates.

The Hill reports on the decision.

Trump Administration Asks Court For Time To Reconsider Enjoined HHS Ruling on Transgender Rights

As previously reported, in December a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation 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. Yesterday the Department of Health and Human Services (HHS) filed a motion (full text) with the court asking that instead of moving ahead with briefing in the case, the court, while keeping its injunction in place, remand the matter to HHS for it to reconsider the rule.  The government argued in its motion that Trump Administration leadership should now "be given an opportunity to reevaluate the regulation and address the issues raised in this litigation."  Rewire reports on developments. This is one of a number of cases in the courts raising the question of whether civil rights laws that ban discrimination on the basis of "sex" cover discrimination on the basis of gender identity. (See prior posting.)

Catholic Hospital Sued Over Refusal Of Gender Reassignment Surgery

A transgender male filed suit this week in a California state trial court against Dignity Heath.  Following Ethical and Religious Directives for Catholic Health Care Services that prohibit direct sterilization, Dignity Health's Mercy San Juan Medical Center refused to perform a hysterectomy as part of plaintiff's treatment for gender dysphoria. The complaint (full text) in Minton v. Dignity Health, (CA Super. Ct., filed 4/19/2017), contend that the refusal constitutes discrimination on the basis of sex in violation of the Unruh Civil Rights Act.  ACLU issued a press release announcing the filing of the lawsuit. Sacramento Bee reports on the suit.

North Carolina Repeals "Bathroom Law", But Pre-Empts Local Regulation

North Carolina Governor Roy Cooper yesterday signed into law House Bill 142 (full text), a compromise bill that repeals H.B. 2, the state's controversial "bathroom law" that restricted use of restrooms and locker rooms in public schools and government offices by transgender individuals. (See prior posting.) The new law also repeals Session Law 2016-99, and thus apparently eliminates any private action under state law for employment discrimination. The new law prohibits local governments, state universities and state agencies from enacting their own regulation of access to multiple occupancy restrooms, showers, or changing facilities.  It also prohibits local governments until Dec. 1, 2020 from enacting or amending any ordinance regulating private employment practices or public accommodations.  In his remarks (full text) in signing H.B. 142, Gov. Cooper said in part:

This law I’m signing today is not just about North Carolina’s reputation – or jobs and sports. It’s about working to end discrimination. Under HB2, North Carolina had zero LGBT protections. Today’s law not only provides for LGBT protections, but opens the door for more.

 This is not a perfect deal or my preferred solution. It stops short of many things we need to do as a state.

 In a perfect world, we would have repealed HB2 today and added full statewide protections for LGBT North Carolinians. Unfortunately, our supermajority Republican legislature will not pass these protections. But this is an important goal that I will keep fighting for.

Washington Post reports on these developments.

High Schooler Sues Over School's Transgender Policy

A suit was filed last week in a Pennsylvania federal district court on behalf of a high school student who contends that his privacy rights, as well as his rights under Title IX, were infringed when his high school permitted transgender students to use locker rooms and rest rooms consistent with their gender identity rather than their biological features.  The complaint (full text) in Doe v. Boyertown Area School District, (ED PA, filed 3/21/2017) alleges that when plaintiff found himself sharing a locker room with a partially undressed individual who was anatomically female, he suffered embarrassment, humiliation, degradation and loss of dignity.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Remands Transgender Bathroom Case

The U.S. Supreme Court today issued an order (Order List) in Gloucester County School Board v. G.G., (Docket No. 16-273), the high profile Title IX transgender bathroom case, sending the case back to the 4th Circuit.  The Order reads:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

In February the Trump Administration withdrew the Guidance document that had been issued by the Obama Administration. (See prior posting).  That withdrawn Guidance document took the position that Title IX requires that students be allowed to use rest rooms and locker rooms consistent with their gender identity. New York Times reports on the Supreme Couirt's action.

Religious Coalitions Take Contrasting Positions As Amici In Transgender Bathroom Case

Broad coalitions of religious groups have, through amicus briefs, now weighed in on opposite sides of the battle over transgender rights and Title IX that will be argued before the U.S. Supreme Court on March 28 in Gloucester County School Board v. G.G.(SCOTUSblog case page).  A brief (full text) filed in January by the U.S. Conference of Catholic Bishops; Union of Orthodox Jewish Congregations;  National Association of Evangelicals; Ethics and Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-day Saints; The Lutheran Church–Missouri Synod; and Christian Legal Society argues in part:

Major religious traditions—including those represented by amici—share the belief that a person’s identity as male or female is created by God and immutable. That belief is contradicted by the U.S. Department of Education’s interpretation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a)....

Interpreting Title IX’s prohibition on sex discrimination as an implicit ban on gender identity discrimination would undermine the ability of religious organizations to govern their own institutions consistent with their tenets. Maintaining religious schools, colleges, and universities that reflect the faith of their sponsoring religious organizations would be in jeopardy. But also, because federal civil rights laws for employment and housing contain the same prohibition on sex discrimination as Title IX, a misstep in this case could threaten religious liberty across a broad range of circumstances, including employment, housing, and public accommodations.

Meanwhile, a brief (full text) filed yesterday on behalf of 15 religious organizations (Protestant, Jewish and Muslim) and more than 1800 faith leaders took a different position, arguing in part:

The arguments of religious amici supporting Petitioner are ultimately not about religious freedom at all. A high school boy simply wanting to use the same restroom as his classmates at a public school poses no threat to anyone’s religious exercise or expression. Rather, these religious actors seek to enforce a kind of religious orthodoxy that rejects the fundamental existence and dignity of transgender persons. Permitting such religious views to inform the scope of civil rights law enforcement would violate the Establishment Clause both by enshrining religion in secular law and by favoring particular religious views and the views of particular institutions over those espoused by the undersigned Amici.

Huffington Post has more on this brief.

Suit Says City Misled Public About Scope of Ordinance Adding LGBT Protections

Liberty Counsel announced yesterday that it has filed a lawsuit challenging the validity of recent amendments to the Jacksonville, Florida Human Rights Ordinance.  The complaint (full text) in Parsons v. City of Jacksonville, Florida, (FL Cir. Ct., filed 3/1/2017), alleges that amendments adding "sexual orientation" and "gender identity" to the "protected categories" in the Jacksonville's existing nondiscrimination laws were improperly adopted.  Florida state law provides:

No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.

The new lawsuit contends that the amendments to the Human Rights Ordinance failed to set out the provisions that were being amended, and charges that "the violations result from the intentional omission of plain and obvious legal requirements, by the ordinance authors and sponsors, to deceive the Jacksonville public, City Council, and Mayor as to the true contents and scope of the HRO."

Supreme Court Clerk Chastises Amici For Wording In Brief On Transgender Rights

Over three dozen amicus briefs have been filed with the U.S. Supreme Court in Gloucester County School Board v. G.G.  At issue is whether Title IX requires schools to allow transgender students to use bathrooms consistent with their gender identity.  Slate reports that letters dated Feb. 24 from the Clerk of the Supreme Court (full text 1, 2) to two amici supporting petitioners have chastised them for referring to the transgender male student involved as "her."  The Clerk wrote Liberty Counsel and Center for Constitutional Jurisprudence saying:

... the covers of your amicus briefs in this case identify the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.”  (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.