Challenge To School's Transgender Policy Is Rejected

In Parents for Privacy v. Dallas School District No. 2, (D OR, July 24, 2018), an Oregon federal district court in a 56-page opinion rejected an array of challenges to a school district's policy that allows transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than
their biological sex assigned at birth.  Plaintiffs alleged that the policy violates the Administrative Procedure Act, the right to privacy, Title IX, Oregon state law, parents’ rights to direct the education and upbringing of their children, and the First Amendment and RFRA. Responding to these claims, the court said in part:

... [H]igh school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs. The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation....

It is within Parent Plaintiffs’ right to remove their children from Dallas High School if they disapprove of transgender student access to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished....

In this case, the law is neutral and generally applicable with respect to religion. There are no allegations that District forced any Plaintiff to embrace a religious belief, nor does the Plan punish anyone for expressing their religious beliefs. In any event, Plaintiffs do not have standing to bring this claim.

Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, 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. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Says Existing Law Covers LGBT Discrimination

The Detroit Free Press reports that at its meeting today, the Michigan Civil Rights Commission, by a vote of 5-0-1, agreed to expand its interpretation of the state's Larsen Civil Rights Act to cover discrimination based on sexual orientation or gender identity.  The Commission will treat discrimination on these grounds in employment, education, housing, real estate, public accommodations and public service as violations of the existing law. The Commission will begin accepting complaints reflecting this new interpretation starting tomorrow.  The state attorney general's office, however, takes the position that this kind of expansion of coverage required legislative action.

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Anti-Transgender Bathroom Initiative Voted Down In Anchorage

Anchorage Daily News reports that in Alaska's first-ever vote-by-mail election, a so-called "bathroom bill" initiative was defeated by Anchorage voters.  The Ballot Measure would have required that all municipally-owned facilities limit restrooms and locker rooms by sex as determined biologically rather than by gender identity.  The initiative would also have permitted other employers and public accommodations to adopt the same policy.  With virtually all ballots counted, the vote as reported last Friday was 40,378 opposed and 36,234 in favor.  Metro Weekly reports on reactions to the defeat.

New White House Memorandum On Military Service By Transgender Persons

Yesterday the White House released a Memorandum from the President on Military Service By Transgender Individuals (full text). Implementing February 2018 recommendations and a related report (full text) from the Secretary of Defense, the memo replaces an earlier Presidential Memorandum and authorizes the military services to implement the Defense Department's recommendations.  Those recommendations preclude most new enlistments by transgender individuals. They allow enlistment by transgender persons only if they have not been diagnosed with gender dysphoria, or if previously diagnosed with gender dysphoria they have been stable for 36 months in their biological sex.  Those who require or have undergone gender transition are disqualified.  The Hill reports on the new Memorandum.

All of this may l\have little immediate effect.  Vanity Fair reports:

It is possible that the ban will never actually be put in place: while the Trump administration is framing the order as “a new policy developed through extensive study by senior uniformed and civilian leaders,” it is substantively the same as the previous Trump policy, which is currently facing multiple lawsuits on constitutional grounds. Four federal courts have issued injunctions in cases filed by civil rights groups, and may ultimately end up before the Supreme Court. The Pentagon said Friday that it will continue to abide by Obama-era policies welcoming transgender troops while those legal battles continue.

6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Ohio Court Gives Custody of Transgender Teen To Grandparents

CNN reports that an Ohio trial court judge today gave custody of a 17-year old transgender male to his grandparents after his parents sought to bar the hormonal transition treatment strongly recommended by the youth's medical team.  Grandparents will now be able to make medical decisions for the teen.  The parents argued that the teen was not old enough to make such a consequential decision.  A county prosecutor contended that the parents objected because of their religious beliefs. Court testimony revealed that the parents, in addition to opposing treatment, refused to call the youth by his chosen name, triggering suicidal feelings in him.

DOE No Longer Investigating Transgender Bathroom Access Complaints

The Department of Education yesterday confirmed that it is no longer investigating civil rights complaints from transgender students who are not allowed to use restrooms that conform to their gender identity.  CNN reports that the Department, implementing its prior withdrawal of Guidance documents issued by the Obama administration, now takes the position that Title IX bars discrimination on the basis of sex, but not on the basis of gender identity. A spokesperson said that Title IX does bar discrimination against transgender students based on sex-based stereotypes, but that longstanding regulations provide that sex-segregated bathrooms are not discriminatory.

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 

The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Supreme Court Refuses Review In Standing Case Challenging Mississippi's Conscience Law

The U.S. Supreme Court today denied certiorari in Barber v. Bryant, (Docket No. 17-547, cert. denied 1/8/2018) and Campaign for Southern Equality v. Bryant, (Docket No. 17-642, cert. denied 1/8/2018). (Order List.)  In the companion cases, the U.S. 5th Circuit Court of Appeals dismissed challenges to Mississippi's Conscience Protection Act for lack of standing. The law, Mississippi's HB 1523, protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting.) An en banc rehearing was denied by the 5th Circuit, over the dissent of two judges.  National Law Journal reports on the Supreme Court's action which leaves the law in effect.

Court Refuses To Block School's Transgender Rest Room Policy

In Students & Parents for Privacy v. United States Department of Education, (ND IL, Dec. 29, 2017), an Illinois federal district court adopted a magistrate's recommendation (see prior posting)  and refused to block a school district from allowing transgender students to use the restrooms and locker rooms of the gender with which they identify. The court pointed out that a good deal of the case was mooted by developments since the magistrate's recommendation:

First, Student A graduated from Fremd High School and the Locker Room Agreement pertaining to her was accordingly terminated....] Second, the United States Department of Education Office for Civil Rights and the United States Department of Justice Civil Rights Division withdrew the administrative guidance that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the views conveyed in the earlier materials should not be relied upon while the issue is under further consideration....

The court went on to hold:

In any event ..., the Magistrate Judge correctly determined that Plaintiffs had not shown a reasonable likelihood of success on the merits that allowing transgender students access to sex-segregated facilities based on their gender identity violates Title IX or the privacy rights of the Student Plaintiffs with whom such facilities are shared, whether such facilities are restrooms or locker rooms. 

England's Court of Appeal Rejects Religious Objections To Transgender Parent's Contact With Children

Britain's Court of Appeal yesterday reversed the decision of a Family Court judge who had ordered that the Orthodox Jewish father of five children who left the family to live as a transgender woman could have no direct contact in the future with the children.  The Family Court judge based his decision on the ostracism that the children and their mother would face from the North Manchester Charedi Jewish community in which they continued to live. (See prior posting.)  In In the matter of M (Children),  (EWCA, Dec. 20, 2017), the appeals court remanded the case to the Family Court, suggesting that some compromise might be found. The appeals court, however, made clear what result should follow if a compromise could not be found:

If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball's submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 [Freedom of thought, conscience and religion].... In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children....

Provisionally ... it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being.

The appeals court also issued a Press Summary of the decision. LGBTQ Nation reports on the decision.

Military Will Move Ahead With Transgender Enlistments

Yesterday, a Washington federal district court granted a preliminary injunction against President Trump's Memorandum that excludes transgender individuals from the military. The court in Karnoski v. Trump, (WD WA, Dec. 11, 2017), concluded that the Memorandum violates plaintiffs' equal protection, substantive due process and First Amendment rights, saying in part:

While Defendants identify important governmental interests including military effectiveness, unit cohesion, and preservation of military resources, they fail to show that the policy prohibiting transgender individuals from serving openly is related to the achievement of those interests.

The Washington state Attorney General issued a press release on the decision.

At least two other courts have previously issued similar injunctions. (See prior posting.)  Yesterday in one of those other cases, a D.C. federal district court judge refused to delay her January 1 deadline for the military to comply. (Washington Post).  The Department of Defense announced yesterday that the military will allow transgender enlistments beginning January 1. It will also reinstitute a 2016 policy that allows transgender enlistment only after 18 months of stability after treatment.

Another Court Enjoins Trump's Transgender Military Ban

Agreeing with a decision last month by a D.C. federal district court (see prior posting), yesterday in Stone v. Trump, (D MD, Nov. 21, 2017), a Maryland federal district court issued a preliminary injunction against President Trump's ban on transgender individuals serving in the military.  The court said in part:

President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Going beyond the D.C. decision, the court found that plaintiffs have standing to challenge the ban on military spending for sex reassignment surgery and enjoined the Sex Reassignment Surgical Directive as well as the Retention and Accession Directives, pending final resolution of the lawsuit. Washington Post reports on the decision.

Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

DOJ Says Title VII Does Not Cover Transgender Discrimination

On Oct. 4, Attorney General Jeff Sessions issued a Memorandum (full text) reversing a prior Justice Department interpretation of the extent to which Title VII of the 1964 Civil Rights Act prohibits discrimination against transgender individuals.  Saying that it is dealing with "a conclusion of law, not policy", the Memorandum says in part:

Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.  Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals.  Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.  Nor does this memorandum remove of reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII.

National Law Journal reports on the AG's action.

6th Circuit Hears Oral Arguments In RFRA Defense To Transgender Discrimination

The U.S. 6th Circuit Court of Appeals heard oral arguments (audio of arguments) in EEOC v. RG and GR Harris Funeral Homes Inc. In the case, a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home, in enforcing its dress code for males, engaged in gender stereotyping.  The funeral home dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)