5th Circuit Hears Oral Arguments In Challenge To Former Health Care Non-Discrimination Rule

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. (See prior posting.) As explained by Reuters report on the case:

The administration argues that the court order, which applies only to the Christian medical groups behind a 2016 lawsuit, is moot because the rule they originally challenged is no longer in effect.

Christian School Challenges USDA's Interpretation Of Sex Discrimination Under Title IX

A Christian school which enrolls 56 students in grades Pre-K to 8 filed suit this week in a Florida federal district court challenging a U.S. Department of Agriculture Departmental Regulation defining sex discrimination as including discrimination on the basis of sexual orientation or gender identity.  The school is covered by the regulation because it participates in Title IX federal meal programs for its low-income students. The complaint (full text) in Faith Action Ministry Alliance, Inc. v. Fried, (MD FL, filed 7/27/2022) alleges in part:

9. If Grant Park Christian Academy does not comply with the new school lunch mandate, it will lose lunch funding for its children.

10. But if Grant Park Christian Academy complies with the new school lunch mandate, it will suffer harms to its educational mission, free speech, and religious exercise. It will no longer be able to maintain sex-separated restrooms for boys and girls based on their biological differences. It will no longer be able to maintain sex-specific dress code and uniform policies, in which, for example, only female students are permitted to wear skorts. It will no longer be able to draw its workforce from among those who share and live out its religious convictions. It will no longer be able to refrain from using pronouns that do not correspond to biological sex.

The complaint concedes that there is an exemption in Title IX for religious organizations where compliance would be inconsistent with their religious tenets. However, plaintiff objects to the requirement that it submit an exemption request for USDA approval, saying in part:

This exemption should apply by operation of statute, but USDA interprets Title IX to require religious schools to submit exemption requests.... These requests do not guarantee that schools have been, or even will be, exempt—but submitting requests do subject schools to a name-and-shame harassment campaign from activists.

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

UPDATE: In an August 5 court filing, the parties informed the court:

Today ... state officials informed Grant Park Christian Academy that the school would be allowed to continue participating in the National School Lunch Program.... In addition, attorneys for the United States Department of Justice ... acknowledged that Grant Park Christian Academy qualifies for a religious exemption under Title IX of the Education Amendments of 1972 and issued a written letter confirming the school’s religious exemption....

8th Circuit: Christian School Lacks Standing To Challenge HUD Memo On Sex Discrimination In Housing

 In The School of the Ozarks, Inc. v. Biden, (8th Cir., July 27, 2022), the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. The majority said in part:

The Memorandum does not, as the College presupposes, require that HUD reach the specific enforcement decision that the College’s current housing policies violate federal law. The Memorandum, for example, says nothing of how the Religious Freedom Restoration Act or the Free Exercise Clause may limit enforcement of the Fair Housing Act’s prohibition on sex discrimination as applied to the College....

The College’s alleged injury also lacks imminence because it is speculative that HUD will file a charge of discrimination against the College in the first place.... [T]he agency has never filed such a charge against a college for sex discrimination based on a housing policy that is specifically exempted from the prohibition on sex discrimination in education under Title IX....

Judge Grasz dissented, arguing in part that the school has already suffered an injury-- the right to notice and comment on proposed rules. He said: "In my view, HUD’s Memorandum is an interpretative rule."

HHS Proposes Rule Expanding Health Care Nondiscrimination Requirements

The Department of Health and Human Services yesterday issued a 308-page rule proposal (full text) titled Nondiscrimination in Health Programs and Activities. The proposed rule would reverse a narrower interpretation of the nondiscrimination provisions in the Affordable Care Act that was reflected in a Trump Administration rule. As summarized by the American Hospital Association:

[T]he proposed rule restores and strengthens civil rights protections for patients and consumers in certain federally funded health programs after a 2020 version of the rule limited its scope and power to cover fewer programs and services. Specifically, HHS said the rule affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity, consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, and reiterates protections from discrimination for seeking reproductive health care services.

Bloomberg Law has more on the proposed rule.

Britain's Employment Appeals Tribunal Rules Against Doctor Who Refused To Use Preferred Pronouns For Transgender Individuals

In Mackereth v. Department for Work and Pensions, (EAT, June 29, 2022), Britain's Employment Appeal Tribunal rejected a Christian doctor's claim that the policy of his government agency employer requiring him, as a disability benefits assessor, to refer to transgender claimants by their preferred pronoun amounted to illegal discrimination and harassment. While disagreeing with some of the conclusions of the Employment Tribunal (ET) below, the 61-page opinion which turns on doctrines developed under Britain's Equality Act, accepts the ultimate conclusion of the ET.  The Appellate decision is summarized by an article in Personnel Today which says in part:

Mackereth’s beliefs are based on what the bible says in Genesis 1:27; that we are born male and female and that a person cannot change their sex or gender. This belief conflicted with DWP’s policies....

...[T]he EAT ruled that Mackereth’s belief is protected under the Equality Act and Human Rights Act. Nevertheless, the judgment notes his belief could be deemed offensive....

... Justice Eady stated that the employment tribunal had properly taken account of the context in which Mackereth had expressed his beliefs and had carefully evaluated DWP’s concerns with them being expressed in his role.

The judgment says: “Given the particular context, it could not be said that the ET had erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the respondents.

Maine AG Says Christian Schools May Still Be Ineligible For Tuition Assistance Program

 As previously reported, last week in Carson v. Makin, the U.S. Supreme Court held that sectarian schools could not be excluded from Maine's tuition aid program that is open to nonsectarian private schools. In a press release posted immediately after the Court's decision, Maine's Attorney General said that many religious schools may still not be able to participate in the program because they:

refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff....  Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.

Insurance Journal reports that in response to the AG's statement, a spokesperson for the American Association of Christian Schools said:

We don’t look at it as discrimination at all. We have a set of principles and beliefs that we believe are conducive to prosperity, to the good life, so to speak, and we partner with parents who share that vision....

Parents Can Move Ahead With Challenge To School's Transgender Transition Policy

 In T.F. v. Kettle Moraine School District, (WI Cir. Ct., June 1, 2022), a Wisconsin state trial court held that parents could proceed with their action challenging a school district's policy to honor minor students’ requests to transition to a different gender identity at school without parental consent. One set of plaintiffs withdrew their child from the school after the school insisted on using the name and pronouns favored by the student. The court held that they could still proceed with a claim for nominal damages. As to other plaintiffs whose children were in the school but were not presently impacted by the policy, the court said in part:

[Parents] need not wait for potential harm from Kettle Moraine’s policy to occur for their children before they are entitled to seek declaratory relief on whether the policy violates their parental rights.

ADF issued a press release announcing the decision. 

South Carolina Governor Signs Law On Transgender Students In Sports

On Monday, South Carolina Governor Henry McMaster signed  H4608, the Save Women's Sports Act (full text). The law requires school athletic teams to be designated based on biological sex at birth of team members, and provides in part:

(2)    Athletic teams or sports designated for males, men, or boys shall not be open to students of the female sex, unless no team designated for females in that sport is offered at the school in which the student is enrolled.

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

The law applies to interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public elementary or secondary school or public postsecondary institution, and to private school teams that compete against public schools. Washington Examiner reports on the new law.

Court Enjoins Application To Christian Employers Of Protections For Gender Transition Services

In Christian Employers Alliance v. U.S. Equal Opportunity Commission, (D ND, May 16, 2022), a North Dakota federal district court, responding to a suit by an employers' organization challenging federal agency interpretations of anti-discrimination requirements, issued a preliminary injunction barring the EEOC from interpreting Title VII to require plaintiff's members to provide insurance coverage for gender transition services. It also enjoined HHS from using Section 1557 of the Affordable Care Act to impose on plaintiff's members who are health care providers an obligation to furnish or facilitate gender transition services or to restrict their speech on gender identity issues. The court said in part:

Defendants argue they will comply with RFRA but cannot predict ahead of time how RFRA will apply to the facts of a particular matter.... Religious freedom cannot be encumbered on a case-by-case basis.... The Alliance maintains if the government interest is to increase access to gender transition services, the government itself could assume the costs for those unable to afford them or obtain them under their employer’s religious objections in the health insurance policies. The Alliance reiterates the government could also provide subsidies, reimbursements, tax credits or deductions. Defendants must demonstrate a compelling interest to the Alliance’s substantial burden and have failed to do so. Determining on a case-by-case basis if a religious exemption should apply is certainly not the least restrictive means.

Bloomberg Law reports on the decision. (See prior related posting.)

Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Court Enjoins Part Of School's Policy On Transgender Students' Preferred Names

Ricard v. USD 475 Geary County, KS School Board, (D KS, May 9, 2022), is a suit brought by a Christian middle school math teacher who objects on religious grounds the school's policy of requiring teachers to refer to transgender students by their preferred names and pronouns, and requiring teachers not to disclose those names and pronouns to parents without the student's consent. A Kansas federal district court enjoined the school district from from disciplining the teacher for referring to a student by the student’s preferred name and pronouns in communications with the student’s parents in the regular course of the teacher's duties. The parties reached an agreement on the other aspect of the school's policy. The teacher would use students' preferred names, but not their preferred pronouns.

Parents Sue Over School's Nondisclosure Of Children's Gender Identity Issues

Suit was filed in a Massachusetts federal district court earlier this month by four parents challenging a school policy to not notify parents of their child’s gender nonconformity or transgender status unless the child consents. The complaint in Foote v. Ludlow School Committee, (D MA, filed 4/12/2022), (full text) alleges that the policy violates parental rights of all the plaintiffs, as well as the free exercise rights of certain of the plaintiffs. It alleges in part:

158. Plaintiffs have sincerely held religious beliefs that all people are to be treated with respect and compassion, and that respect and compassion do not include misrepresenting an individual’s natural created identity as either a male or a female.

159. Plaintiffs have sincerely held religious beliefs that individuals are to speak the truth, including speaking the truth regarding matters of sexual identity as a male or female.

160. Defendants’ actions in excluding Plaintiffs Feliciano and Salmeron from decision making regarding their children’s sexual and gender identity target the Plaintiffs’ beliefs regarding the created order, human nature, sexuality, gender, ethics, and morality which constitute central components of their sincerely held religious beliefs.

Christian Post reports on the lawsuit.

Kansas Governor Vetoes Transgender Athlete Ban

The Kansas City Star reports that on Friday, Kansas Governor Laura Kelley vetoed Senate Bill 160 which banned transgender women from competing in women's sports. The ban would have applied to interscholastic, intercollegiate, intramural and club athletic teams or sports sponsored by a public elementary or secondary school or a postsecondary educational institution, and to teams that compete against these schools. In her veto message, Kelley said in part:

We all want a fair and safe place for our kids to play and compete. However, this bill didn’t come from the experts at our schools, our athletes, or the Kansas State High School Activities Association. It came from politicians trying to score political points.

$400,000 Settlement In Favor Of Prof Who Refused To Recognize Student's Gender Transition

After the U.S. 6th Circuit Court of Appeals in 2021 held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that Professor Nick Meriwether address a transgender student by her preferred gender pronoun, a settlement has been reached in the case. According to a press release from ADF, the university agreed to pay $400,000 in damages plus attorneys' fees. Also, according to the press release:

As part of the settlement, the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex.

A stipulation of voluntary dismissal was filed yesterday in Meriwether v. Trustees of Shawnee State University, (SD OH filed 4/14/2022).

Kentucky Legislature Overrides Veto Of Ban On Transgender Girls On Middle and High School Girl's Teams

Last week, Kentucky Governor Andy Beshear vetoed (veto message) SB 83 (full text) which bars transgender girls in grades 6 though 12 from competing on girls' athletic teams or activities in Kentucky public schools. As reported by the Courier Journal, yesterday the Kentucky legislature overrode the governor's veto.

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Alabama Legislature Passes Bill On Bathrooms and LGBT Instruction In Public Schools

Yesterday the Alabama legislature gave final passage to, and sent to the governor for her signature, HB322 (full text). The bill, with certain exceptions, requires:

A public K-12 school shall require every multiple occupancy restroom or changing area designated for student use to be used by individuals based on their biological sex.

The bill also provides:

... [I]ndividuals providing classroom instruction to students in kindergarten through the fifth grade at a public K-12 school shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

White House Announces Initiatives To Support Transgender Americans

President Biden this week issued a Proclamation (full text) recognizing yesterday as "Transgender Day of Visibility." The Proclamation says in part:

To everyone celebrating Transgender Day of Visibility, I want you to know that your President sees you.  The First Lady, the Vice President, the Second Gentleman, and my entire Administration see you for who you are — made in the image of God and deserving of dignity, respect, and support....

In the past year, hundreds of anti-transgender bills in States were proposed across America, most of them targeting transgender kids.  The onslaught has continued this year.  These bills are wrong.  Efforts to criminalize supportive medical care for transgender kids, to ban transgender children from playing sports, and to outlaw discussing LGBTQI+ people in schools undermine their humanity and corrode our Nation’s values.

This was followed yesterday with the issuance by the White House of a lengthy Fact Sheet (full text) outlining the Administration's efforts to advance equality and visibility of transgender, non-binary and gender non-conforming Americans. Among the new initiatives announced are allowing "X" to be selected as a gender marker on passport applications and various other federal forms.  The Fact Sheet also says:

In recent months, multiple states have removed critical information about mental health resources for LGBTQI+ youth from official state websites. Transgender youth often face significant barriers in accessing supportive resources, and are at greater risk of attempted suicide. In response, the Department of Health and Human Services released a new website that offers resources for transgender and LGBTQI+ youth, their parents, and providers. These resources include best practices for affirming an LGBTQI+ child, and information about suicide prevention services.

Arizona Governor Signs Bills On Transgender Issues And Abortion

As described in a press release from the Governor's office, yesterday Arizona Governor Doug Ducey signed the following bills into law:

Senate Bill 1138, sponsored by Sen. Warren Petersen, delays irreversible gender reassignment surgery until the age of 18. The bill does not prohibit puberty blocking hormones or any other hormone therapy and will not require any child to go off any prescriptions they may be taking....

The Governor also signed S.B. 1165, sponsored by Sen. Nancy Barto. This legislation requires all Arizona public schools, and any private schools that compete against them, to expressly designate their interscholastic athletics teams based on the biological sex of the participating students....

Continuing Arizona’s commitment to protecting preborn children, the Governor also signed S.B. 1164, sponsored by Sen. Nancy Barto. The bill prohibits a physician from performing an abortion past 15 weeks gestation, except in a medical emergency....

Women who received an abortion after 15 weeks may not be prosecuted.

NBC News reports on these developments.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.