Big Victory for Trans Health - September 2019 - New York Law School
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
September 2019 Big Victory for Trans Health
L G B T
EXECUTIVE SUMMARY
Editor-In-Chief 1 Ninth Circuit Affirms Injunction Ordering Gender Confirmation Surgery
for Idaho Transgender Inmate
Arthur S. Leonard,
3 Second Round of Briefing in LGBT Title VII Cases Before the Supreme
Robert F. Wagner Professor
Court Completed During August
of Labor and Employment Law
5 Split 7th Circuit Decision Allows Qualified Immunity for Denial of
New York Law School Inmate’s Gender Confirmation Surgery
185 West Broadway
6 8th Circuit Revives Videographer’s 1st Amendment Claim Against
New York, NY 10013 Having to Make Same-Sex Wedding Videos
(212) 431-2156 9 2nd Circuit Holds That It Was Not “Clearly Established” That Sexual
arthur.leonard@nyls.edu Orientation Discrimination in Public Employment is Actionable under
the Equal Protection Clause Prior to Obergefell and Windsor
Contributors
12 Divided 9th Circuit Panel Revives Gay Mexican’s Refugee Claim
Daniel Chavez, Cardozo ‘21
13 Federal Court Rules for Gavin Grimm in Long-Running Virginia
Filip Cukovic, NYLS ‘21 Transgender Bathroom Case
Brett Figlewski, Esq.
15 Federal Court Permanently Enjoins Wisconsin Medicaid from Enforcing
Corey Gibbs, NYLS ‘21 State Statutory Exclusion of Coverage for Gender Transition
Matthew Goodwin, Esq. 17 Federal Court in Baltimore Rules on Next Stage of Pending Challenge to
Christian Kummer, Middlebury ‘22 Trump Administration’s Transgender Military Policy
Eric Lesh, Esq. 19 Utah Supreme Court Overrules Decision that Same-Sex Couples Cannot
Chan Tov McNamarah, Cornell ‘19 Make Enforceable Agreements for Gestational Surrogacy
Timothy Ramos, NYLS ‘19 20 Federal Court Says Faith-Based Women’s Shelter in Anchorage is Not
Subject To Public Accommodations Law
William J. Rold, Esq.
Bryan Xenitelis, Esq. 22 Massachusetts Trial Court Recognizes Lesbian Co-Parent’s Status in the
Absence of Legal Relationship with the Birth Mother of Child Conceived
Production Manager through Donor Insemination
Leah Harper 23 Oregon Court of Appeals Affirms Discrimination and Retaliation Verdict
for Out Gay Porn Store Clerk
Circulation Rate Inquiries
25 Federal Magistrate Recommends Damages Case Proceed Against
LeGaL Foundation Private Prison Operated by GEO for Gay-Bashing Attributed to Security
601 West 26th Street, Suite 325-20 Understaffing
New York, NY 10001 26 From Choking in the Bedroom, To Choking in the Courtroom: Indiana
(212) 353-9118 | info@le-gal.org Appeals Court Affirms Murder Verdict
27 South Carolina Judges Grant Summary Judgment against Transgender
LGBT Law Notes Podcast
Inmate; Accept Budget and “Freeze Frame” Defenses and Opinions of
Listen on iTunes (search “LGBT Legal”) Webinar “Experts”
or Podbean at legal.podbean.com. 29 Federal Court Denies Gay Refugee Release from ICE Detention Despite
Law Notes Archive Meeting Criteria of an Injunction in a Separate Case
http://bit.ly/LGBTLawNotes-archive 30 Texas Appeals Court Rejects Constitutional Challenge to Prostitution
Statute
© 2019 The LeGaL Foundation 31 Illinois Appellate Court Divided Over Child Pornography Conviction
LGBT Law Notes & the LGBT Law 33 Sixth Circuit Vacates Dismissal of Claim of Bisexual Inmate Denied Post-
Notes Podcast are Publications of the Rape Counseling
LGBT Bar Association Foundation 34 Federal Transgender Inmate Permitted to Proceed on Eighth
of New York (www.lgbtbarny.org) Amendment Medical Claim and on Statutory Claim under
Rehabilitation Act, Despite Exclusionary Statutory Language
ISSN 8755-9021
35 Notes 67 Citations
If you are interested in becoming a
contributing author to LGBT Law
Notes, please contact info@le-gal.org.
Ninth Circuit Affirms Injunction Ordering Gender
Confirmation Surgery for Idaho Transgender Inmate
By William J. Rold
Law Notes has been following and other gender-affirming treatments. Edmo’s experts, including Dr. Randi
the litigation involving transgender All experts also agreed that the Fifth Ettner (who co-authored the current
Idaho prisoner Adree Edmo for three Edition of the American Psychiatric WPATH Standards), testified that Edmo
years. In 2018, U.S. District Judge B. Association’s Diagnostic and Statistical was not only a proper patient for GCS
Lynn Winmill granted a preliminary Manual of Mental Disorders [DSM-V] but that GCS was the only treatment that
injunction for her to have gender sets forth conditions for diagnosis of would remove her severe dysphoria. Dr.
confirmation surgery (GCS) within six gender dysphoria and that the World Ryan Gordon also testified for Edmo.
months. Edmo v. Idaho Dep’t of Corr., Professional Association of Transgender They both testified that Dr. Eliason’s
358 F. Supp. 3d 1103, 1111 (D. Idaho Health [WPATH] Standards of Care for categories made no sense, because
2018). The Ninth Circuit now affirms, the Health of Transsexual, Transgender, the first does not generally apply to
Edmo v. Corizon, 2019 WL 3978329, and Gender-Nonconforming People (7th transgender people, the second is met
2019 U.S. App. LEXIS 27171( 9th Cir., ed. 2011), is an appropriate “benchmark” by Edmo, and the third is “bizarre” and
Aug. 23, 2019), in a unanimous panel for assessing treatment decisions. The not medically understandable. Eliason
per curiam opinion by Circuit Judges court’s extensive discussion provides could not cite any authority in support
M. Margaret McKeown and Ronald M. a virtual textbook in layman’s terms of his third category formulation. Edmo
Gould and, by designation, U.S. District explaining the subject matter of the case. successfully self-removed one testicle
Judge Robert S. Lasnik (W.D. Wash.). The dispute arose on whether, having in 2016, leaving a bloody mess, while
All four judges have been serving on received the maximum benefit attainable under defendant Eliason’s “care.”
the bench for many years, having been from hormone therapy, counseling Defense experts (Dr. Keelin Garney,
appointed by President Bill Clinton and being allowed to groom and dress a psychiatrist, and Dr. Joel Andrade,
during the 1990s. consistent with her gender identity, a PhD social worker) said that Edmo
The opinion, at nearly 22,000 words, Edmo could compel the state under the had not lived as a woman outside of
is enormous. The 9th Circuit granted Eighth Amendment to perform GCS; prison for at least 12 months and that
a stay of Judge Winmill’s decision that is, that denial of GCS under these her psychiatric co-morbidity precluded
pending the appeal, but it expedited the circumstances would be “cruel and GCS. Defendant Eliason adopted these
appeals due to the nature of the case. unusual punishment.” Affirming the reasons as well, and he said that his
There were two appeals: one by state district court’s order requiring GCS, opinions were confirmed by the Idaho
officials and one by the contractual the Circuit emphasized that it was DOC transgender “Committee.” Judge
health care vendor, Corizon. The scope respecting the findings of fact by Judge Winmill found that a female experience
of the unauthored decision suggests Winmill and the need (constitutional sufficient to satisfy WPATH Standards
that more than one judge’s chambers requirement) for individual professional could occur in a prison setting (based
was responsible for its composition. judgment for each patient suffering from on Edmo’s experts and the WPATH
The court found that denying gender gender dysphoria. By its own terms, the standards themselves, which include
confirmation surgery to Adree Edmo affirmance is limited to the trial record standards for treating institutionalized
violates her 8th Amendment right to be in the District Court in Edmo. people) and that Edmo’s psychiatric
free of cruel and unusual punishment, Edmo has been on hormones problems were under control, except
but emphasized that the case turns on since 2012, and she is hormonally those that were related directly to
its particular facts, and the court was not confirmed (meaning she has achieved her dysphoria. He found that the
adopting a general rule that all inmates the maximum benefit from what Committee’s concurrence added little
suffering from gender dysphoria are hormones can offer). She attempted self- support to the defense. The Circuit
automatically entitled to such treatment. castration in 2015, after which Corizon’s affirmed these findings.
The opinion begins with a general psychiatrist (defendant Dr. Eliason) These defenses are “old chestnuts,”
discussion about transgender people nevertheless wrote that she was not a if such a phrase can be used for the
and gender dysphoria suffered by some candidate for GCS because she: (1) did rapidly-evolving transgender prisoner
of them, when the tension between not have congenital malformations; (2) world. For many inmates serving life
birth gender and gender identity did not have “devastating dysphoria”; or very long sentences, the prison
causes severe psychological and life and (3) did not have “some type of “experience” is the only one there
disruption. No one disputed in this medical problem in which endogenous will be, so requiring another type of
case that Edmo has a serious medical sexual hormones were causing severe “real life” experience is tantamount
condition or that she requires hormones physiological damage.” to outright denial, a categorical denial
September 2019 LGBT Law Notes 1
of GCS for inmates transition during in Kosilek. Here, the 9th Circuit panel a credible medical basis for deviating
incarceration. Co-morbidity is baked found this to be irreconcilable with the from the accepted view,” wrote the
into the diagnosis: if a transgender fact-intensive requirement of analysis panel, citing Kosilek, 774 F.3d at 90
person is not having severe stress and of the subjective prong of deliberate n.12. Edmo, 2019 WL 3978329 at *29.
dysfunction, the DSM-V criteria for indifference intent as required by Judge Winmill found that Idaho
dysphoria are not met. The question is the Ninth Circuit’s 8th Amendment had a de facto ban on GCS, despite
whether Edmo’s depression and self- precedents. It likewise rejected the their policy purporting to allow it
harm were separate from dysphoria or notions that a sinister motive had to where “necessary.” Edmo, 358 F. Supp.
caused by the failure to treat it. Judge be shown in the denial of a particular 3d at 1127. The Circuit found that its
Winmill found the latter, and he ruled treatment, or that provision of “some disposition made it unnecessary to reach
that Edmo was competent to make care” defeated an Eighth Amendment the de facto ban issue.
medical decisions. Again, the Circuit claim. Edmo, 2019 WL 3978329 at *26- The state further argued that the
affirmed. *27. Referring to the numerous amici, injunction was overbroad because it
During the appeal, the Circuit the court rejected Gibson’s reliance on a ordered them to provide surgery when
issued a limited remand to the District lack of consensus regarding GCS, saying they are not themselves surgeons.
Court to clarify a few issues, including it was “incorrect, or at best outdated.” [They actually argued that, believe it
whether Judge Winmill’s injunction was Id. at *28. or not.] The Court found this point to
preliminary or permanent. He responded The Ninth Circuit found that be “obtuse.” Of course, their obligation
that it was permanent. Edmo v. Idaho denying GCS to Edmo was “medically would be to get a qualified surgeon to
Dep’t of Corr., 2019 WL 2319527, at *2 unacceptable” under the circumstances. perform the procedure and qualified
(D. Idaho May 31, 2019). The Circuit Id. at *30. Thus, it did not merely present medical personnel to handle the follow-
also found that Judge Winmill had a non-actionable difference of medical up to surgery.
made the findings necessary under opinion. The district court did “what the On the scope of the injunction,
the Prison Litigation Reform Act: First Circuit did”: it applied deliberate defendants had some success. Idaho
that the injunction was as narrow as indifference standards to the plaintiff’s DOC officials were dismissed as
possible with minimum intrusion into gender dysphoria to enforce the Eighth defendants in their individual capacities,
prison operations, while still curing Amendment. Id. *28. as they were not shown to have been
the constitutional violation, relying on The defendants next argued that personally involved in the denial of
Armstrong v. Schwarzenegger, 622 F.3d Edmo has not shown irreparable injury Edmo’s Eighth Amendment rights. They
1058, 1070 (9th Cir. 2010). necessary for an injunction because: (1) remain as defendants in their official
The Circuit found that the injunction she has waited so long already; (2) there capacities (including the department
was required by a line of Eighth is not an “emergency”: and (3) Edmo has head), since they are needed to effectuate
Amendment cases extending back three not attempted self-castration in years. injunctive relief. Colwell v. Bannister,
decades. It also surveyed other circuits The Circuit swatted each argument. The 763 F.3d 1060, 1070-1 (9th Cir. 2014).
on transgender prisoner treatment. Two defendants delayed producing Edmo’s The private contractual health care
decisions warrant separate discussion: medical records for more than six provider (Corizon) is to be dismissed as
Kosilek and Gibson. months after counsel was appointed to a defendant. The corporation does not
In Kosilek v. Spencer, 774 F.3d represent her by the district court, then have a transgender “policy,” it argues, so
63 (1st Cir., en banc, 2014), the First sought to use the delay to its benefit in it cannot be found liable under Monell
Circuit found that confirmation surgery opposing an injunction. Courts have [v. Department of Social Services, 436
was not constitutionally required for authority under the Eighth Amendment U.S. 658 (1978)] theory. The court left
the transgender plaintiff because the to order non-emergent care. The third this issue about liability of contractual
experts disagreed about the necessity for argument overlooks the evidence of vendors “for another day” in Oyenik v.
the treatment in her case. Id. at 88. Here, “profound, persistent distress.” Corizon Health Inc., 696 F. App’x 792,
on a record five years later for another The Court was careful not to write a 794 n.1 (9th Cir. 2017); and it does so
patient, the experts did not so widely decision that constitutionalizes prison here again. Defendant Dr. Eliason,
disagree; and the defense experts were medical care just because there is a Corizon psychiatrist, remains a
more roundly impeached. Moreover, in agreement in health care communities defendant, however, because he was
Kosilek, the record showed that both that certain treatment is medically making decisions about the care to be
alternatives were “adequate,” a finding necessary. The Circuit found that the offered Edmo. Judge Winmill found
with which Judge Winmill disagreed District Court used a “flexible,” not a him personally liable for violating
here, and such finding was not error. “strict,” adherence to WPATH standards Edmo’s Eighth Amendment rights, and
In Gibson v. Collier, 920 F.3d 212 in applying them to the facts. “But when the Circuit affirmed that finding.
(5th Cir. 2019), there was no record for medical consensus is that a treatment The court concluded: “We apply the
the transgender patient, who was pro is effective and medically necessary dictates of the Eighth Amendment today
se before the district court and not in a under the circumstances, prison officials in an area of increased social awareness:
position to provide expert witnesses; the render unacceptable care by following transgender health care . . . . [T]he
court had adopted the expert testimony the views of outliers without offering medical community’s understanding of
2 LGBT Law Notes September 2019
what treatments are safe and medically
necessary to treat gender dysphoria has
Second Round of Briefing in LGBT Title
changed as more information becomes
available, research is undertaken, and
VII Cases Before the Supreme Court
experience is gained. The Eighth- Completed During August
Amendment inquiry takes account of
that developing understanding. See By Arthur S. Leonard
Estelle v. Gamble, 429 U.S.99, 102–03
(1976) . . . . We hold that where, as here, On October 8, the second day intervened as a co-appellant in the 6th
the record shows that the medically of hearings in the Supreme Court’s Circuit, is named as a Respondent in
necessary treatment for a prisoner’s October 2019 Term, the Court will hear Harris Funeral Homes’ cert. petition,
gender dysphoria is gender confirmation arguments in Bostock v. Clayton County, and is represented by the American Civil
surgery, and responsible prison Georgia, Case No. 17-1618, and Altitude Liberties Union. Harris Funeral Homes
officials deny such treatment with full Express, Inc. v. Zarda, Case No. 17-1623, is represented by Alliance Defending
awareness of the prisoner’s suffering, appeals from the 11th and 2nd Circuits on Freedom (ADF), the conservative
those officials violate the Eighth the question whether sexual orientation religious litigation group that is a
Amendment’s prohibition on cruel and discrimination claims are actionable frequent litigant opposing LGBT rights
unusual punishment.” as sex discrimination under Title VII in the courts.
Edmo is scheduled to be released in of the Civil Rights Act of 1964, and in For purposes of briefing, the Court
2021. It is unclear whether the defendants R.G. & G.R. Harris Funeral Homes decided to treat all the employee-
can drag this case out that long, or will v. Equal Employment Opportunity plaintiffs in the three cases as if they
decide to release her early to avoid Commission and Aimee Stephens, were Petitioners (although only Bostock
providing the surgery. They could also Case No. 18-107, an appeal from the 6th is a Petitioner in the Supreme Court),
seek a stay from the U.S. Supreme Court Circuit on the question whether gender and the three employer-defendants as
pending a petition for certiorari. That identity discrimination claims are if they were Respondents (even though
would take at least five justices to grant. actionable as sex discrimination under two of them are actually Petitioners).
The 9th Circuit urges the remaining Title VII. The Court consolidated the Thus, the first round of briefing, which
defendants “to move forward,” two sexual orientation discrimination was concluded early in July, consisted
indicating it will not continue the stay cases, in which the plaintiff-employee of the main briefs for Gerald Bostock,
after mandate or grant an extension of is appealing in Bostock and the the Estate of Donald Zarda, and Aimee
time to petition for rehearing. Indeed, the
defendant-employer is appealing in Stephens, and the amicus briefs (more
court commented that “the facts of this
Altitude Express, for a single argument than 40) filed in support of their
case call for expeditious effectuation of
of one hour. The argument in Harris claims that Title VII does extend to
the injunction.”
Funeral Homes, in which the employer sexual orientation and gender identity
The case was argued on appeal
is appealing, will be argued next. discrimination claims. The second
for Edmo by Lori Rifkin of Hadsell
Transcripts of the arguments will round of briefing, which concluded
Stormer & Resnik, LLP (Emeryville
be posted on the Supreme Court’s during August, consisted of the briefs
and Pasadena, CA); Edmo was also
represented by Ferguson Durham PLLC website shortly after each argument has for the three employers – Clayton
(Boise) and National Center for Lesbian concluded (usually within an hour or County, Georgia; Altitude Express; and
Rights (San Francisco). Numerous two), and links to audio recordings of Harris Funeral Homes; and the EEOC,
amici also appeared on behalf of the arguments will be made available which is technically a respondent even
appellee, including MacArthur Justice on the Court’s website later in the week. though the government, as such, is now
Center, ACLU of Idaho Foundation, Harris Funeral Homes presents an siding with the Petitioner.
ACLU National Prison Project, ACLU unusual situation; the victorious party Interestingly, despite earnest efforts
LGBT and HIV Project, Lambda Legal in the 6th Circuit Court of Appeals, by the Solicitor General’s Office, the
Defense & Education Fund, Center the Equal Employment Opportunity EEOC’s General Counsel, who would
for Constitutional Rights, medical Commission (EEOC), is represented ordinarily be a signatory on the brief
and mental health organizations, in the Supreme Court by the Solicitor purporting to represent their agency,
former correctional officials, and other General, who, reflecting the change did not join in the submission of the
interested non-profit organizations and of administration since the original government’s brief, since as of the date
individuals. See Appearances included complaint in this case was filed by the of filing the EEOC had not disavowed
with the court’s opinion for a complete EEOC, is now joining with the employer its position that gender identity
list of amici, counsel, and locations. ■ to ask the Court to reverse the 6th discrimination claims are covered by
Circuit. The only party defending the 6th Title VII. Indeed, the amicus brief
Arthur S. Leonard is the Robert F. Circuit’s decision is the charging party filed by the Solicitor General in the
Wagner Prof. of Labor and Employment in the EEOC proceeding, transgender sexual orientation cases on behalf of
Law at New York Law School. funeral director Aimee Stephens, who the employer also lacked the EEOC’s
September 2019 LGBT Law Notes 3
signature, since the agency that enforces discrimination claims in the early the EEOC has not overruled Macy,
Title VII (and whose interpretation period of Title VII’s history, Congress it may do so in due course as the
of the statute is entitled to judicial passed a package of amendments to new majority resulting from Trump’s
deference, under existing precedents), Title VII in 1991 but did not overrule appointments to the Commission
has not disavowed its position (argued any of those rulings legislatively. either rules on a federal sector gender
as an agency amicus in the 2nd Circuit) The brief also rejects certain other identity discrimination case, proposes a
that Title VII covers sexual orientation arguments that some lower court judges new regulatory interpretation, or takes
claims. Quite a tangle for the Supreme had accepted as reasons for extending a position in litigation in the lower
Court to confront. During oral argument Title VII to cover sexual orientation federal courts embracing a change of
of Zarda v. Altitude Express in the 2nd claims. None of these arguments was position. The Commission could just
Circuit, the en banc bench reflected new or unanticipated, and they were instruct its regional offices to dismiss
some puzzlement and bemusement all rejected in one way or another not gender identity claims on jurisdictional
about being confronted with a lawyer only in the 2nd Circuit (en banc) but also grounds, similar to the action of the
from the S.G.’s office and a lawyer from in the 7th Circuit (en banc) in 2017 in U.S. Department of Education, which
the EEOC arguing against each other. Hively v. Ivy Tech Community College, now refuses to process gender identity
Simultaneously with the filing of a case where the employer decided not discrimination claims under Title IX of
the government’s brief, the Solicitor to seek Supreme Court review. the Education Amendments of 1972 in
General filed a request that argument Clayton County’s brief (Bostock), light of its “withdrawal” of the guidance
time be divided evenly (15 minutes signed by Counsel of Record Jack R. letter it sent to educational institutions
each) between the Solicitor General’s Hancock and other attorneys from in 2016 in the context of the Gavin
office and ADF, counsel for Harris the Forest Park, Georgia, law firm of Grimm case.
Funeral Homes. Freeman Mathis & Gary LLP, carries The brief on behalf of Harris
Law Notes gave an overview of the the same argument headings as Altitude Funeral Homes, submitted by Alliance
first round of filings in our August 2019 Express’s brief. Indeed, they appear to Defending Freedom, attracted
issue. Herewith is a brief summary of be a joint product, making identical comparatively little attention, with the
the second round of filings. arguments. Solicitor General being the “elephant
Altitude Express’s brief was signed The main brief that drew most of in the room.” Mainstream press
by Saul D. Zabell, Counsel of Record the press commentary when it was coverage clearly sees Harris as part
who has represented the company filed, of course, was the Solicitor of the Trump Administration’s overall
throughout this litigation, and Ryan T. General’s brief, on which S.G. Noel J. opposition to transgender rights as
Biesenbach of Zabell & Collotta, P.C., a Francisco is Counsel of Record. The part of its systemic attempt to reverse
Bohemia, N.Y., law firm. It predictably other signatories are attorneys in the the civil rights positions taken by the
argues that the meaning of Title VII Solicitor General’s office and main Obama Administration. Clearly, the
must be its “original public meaning” – Justice Department. As noted above, president feels that he was elected to
the meaning that members of the public and deemed newsworthy, no attorneys overturn everything that the Obama
would attribute to the statutory language from the EEOC signed this brief which Administration did, if possible.
when it was enacted by Congress in is presented as the brief of the Federal This was certainly reflected in his
1964. The brief claims that the Supreme Respondent (which, technically, is the transgender military service ban and
Court has never interpreted Title VII EEOC). The brief urges the Court to former Attorney General Jeff Sessions’
in a manner that “conflicts” with “the adopt a narrow interpretation of key October 2017 memorandum disavowing
original public meaning of ‘sex’.” It Title VII Supreme Court precedents on the Obama Administration’s positions
also describes as “wrong” the various which the EEOC had relied in the 6th on both sexual orientation and gender
legal theories offered by Bostock for Circuit, Price Waterhouse v. Hopkins identity discrimination.
construing “sex” to include “gender and Oncale v. Sundowner Offshore Beginning on August 16 and
identity.” It argues that subsequent Services, contending that the 6th Circuit extending through August 23, the
legislative developments – the repeated had extended them beyond their Supreme Court clerk added to the
introduction of bills to amend federal holdings to reach the conclusion that docket forty amicus briefs supporting
anti-discrimination law to add “sexual allowing gender identity discrimination Harris Funeral Homes’ (and the
orientation” that have never achieved claims is consistent with Supreme Court Solicitor General’s) position that Title
enactment, as well as the enactment precedent. Most of the arguments in the VII does not extend to gender identity
of some other statutes that use ‘sexual brief are variants of one or more of the discrimination claims. Some were
orientation’ such as the Hate Crimes arguments in the Altitude Express and from the “usual suspects” familiar to
Law – show Congress’s understanding Clayton County briefs, countering the anybody who had scanned the amicus
that the term must be used to address EEOC’s justifications for applying Title lists in Obergefell and Windsor, the
such discrimination, noting also that VII to gender identity claims in Macy cases concerning marriage equality.
after the EEOC and several lower federal v. Holder, EEOC Doc. 0120120821, They include states whose anti-
courts had rejected sexual orientation 2012 WL 1435995 (2012). Even though discrimination laws do not cover
4 LGBT Law Notes September 2019
gender identity, Republican members of a newsworthy absence denoting that at
Congress, companies that don’t want to least as of the time when briefs were
Split 7th Circuit
be forced to employ transgender people, due, the agency had not abandoned its Decision Allows
individual legal scholars, polemicists, position in Baldwin v. Foxx, EEOC No.
think tanks and policy institutes, and, of 0120133080, 2015 WL 4397641 (2015), Qualified Immunity
course, religious entities that argue that that Title VII covers sexual orientation
requiring employers to accommodate discrimination claims. Many of these for Denial of
transgender people excessively burdens amicus briefs were noted as addressing
their religious freedom. In Harris, the all three pending Title VII cases and
Inmate’s Gender
owner of the funeral homes stated his thus were also filed and counted among Confirmation
religious beliefs as a justification for the Harris Funeral Home amicus briefs.
his refusal to continue employing the When it announced the filing schedule, Surgery
plaintiff after she wrote to him about the Court also directed that amicus
her gender transition. As a result of briefs for the Altitude Express case By William J. Rold
this, the district court ruled in favor were to be filed on the Bostock docket.
of Harris Funeral Homes in reliance The same mix of amici that one finds The earliest transgender prisoner
on the Religious Freedom Restoration on the Harris Funeral Homes docket cases scoffed at the idea that gender
Act, employing an interpretation generally show up on the Bostock list, dysphoria (then “gender identity
subsequently rejected by the 6th Circuit. minus those groups who have a specific disorder”) required specialist evaluation.
Surprisingly, in light of its religious focus on opposing transgender rights. Last year, the Seventh Circuit denied
freedom orientation, ADF did not The arguments in the amicus briefs are qualified immunity from damages for
include in its cert petition a question similar as well, although, of course, the a blanket rule disallowing hormone
about the application of the RFRA to argument that gender as identified at therapy in Mitchell v. Kallas, 895
this case, so technically the religious birth is permanent and not changeable F.3d 492 (7th Cir. 2018). Now, in a
arguments made by many of the amici is absent here, while it predominates 2-1 decision with opinion written by
are not pertinent to the questions on in many of the amicus briefs filed in Circuit Judge Diane P. Sykes (George W.
which cert was granted. Harris Funeral Homes. Bush), joined by Circuit Judge Michael
Particular press attention was Several of these amicus briefs Y. Scudder (Trump), the court grants
drawn to briefs of some feminist groups emanate from groups that may have qualified immunity on damages for
who are particularly perturbed about been formed for the specific purpose declining gender confirmation surgery.
any legal recognition of transgender of filing amicus briefs in these cases. Chief Circuit Judge Diane P. Wood
women, making arguments that fall All of the docketed amicus briefs can (Clinton) dissents. [There are currently
far outside the mainstream of the be examined on the Supreme Court’s no vacancies on the Seventh Circuit.]
professional medical and mental health website, where they are available to be The court allowed an interlocutory
communities about the nature of human downloaded in pdf format. appeal and reversed a denial of qualified
sexuality, contending that transgender The deadline for the third round of immunity, by Chief Judge James D.
women are men in drag who should briefing set by the Court is September Peterson of the Western District of
not be given admission to women-only 16, when Reply Briefs can be filed, Wisconsin, in Campbell v. Kallas,
spaces and should not be accorded the responding to the briefs that were filed 2019 U.S. App. LEXIS 24655, 2019
treatment under anti-discrimination in August. Reply briefs, if any, will be WL 3886912 (7th Cir., August 19, 2019).
law that has been accorded to women. reported in the October issue of Law Although injunctive relief claims remain
Vox.com devoted a lengthy article Notes. ■ for trial in any event, the court was
to explaining the opposition of some unanimous on appellate jurisdiction of
feminist groups to transgender rights. the immunity from damages question,
See Katelyn Burns, The Rise of Anti- citing Scott v. Lacy, 811 F.2d 1153 (7th
Trans ‘Radical’ Feminists, Explained” Cir. 1987), and noting other circuits in
(posted September 5, 2019). accord. The Supreme Court has not
Also during August, 24 amicus directly ruled on the issue.
briefs (including one from the Solicitor The Court begins by reviewing
General, as the federal government is not the history of Mark Campbell, a/k/a
a party in the sexual orientation cases) Nicole Rose Campbell, and her
were filed in support of the employers course of treatment in the Wisconsin
in the sexual orientation discrimination prison system, where she is serving
cases, Bostock and Altitude Express. Of a 34-year sentence. The diagnosis of
course, the EEOC’s legal staff is not gender dysphoria was not at issue,
represented among the signers of the nor was hormone therapy. The extent
Solicitor General’s amicus brief, again of feminizing accommodation was
September 2019 LGBT Law Notes 5
reserved for trial by Judge Peterson, and Having recently found no qualified
it was not before the Seventh Circuit. immunity for denial of hormones in
8th Circuit Revives
At the risk of being far too general, Mitchell, the Seventh Circuit majority Videographer’s 1st
one can look at gender dysphoria here determined that qualified immunity
treatment as triadic: first, diagnosis should protect defendants on the Amendment Claim
and psychotherapy; then hormone/ question of confirmation surgery. Yes,
feminizing treatment; finally, surgery. it is the same Dr. Karras in both cases. Against Having to
The law has progressed well into the Judge Wood dissented, stating that
first two triads – so much so that blanket it was not fatal for plaintiff’s case that
Make Same-Sex
denial of hormones can leave defendants
to answer in damages. The court was
there was no Seventh Circuit case
directly about confirmation surgery.
Wedding Videos
not willing, however, to lift qualified The duty to provide dysphoria treatment By Arthur S. Leonard
immunity for damages for denial of extended to surgery, and there is a jury
surgery – at least not in this case for the question on deliberate indifference, in A three-judge panel of the U.S.
time period at issue. her opinion. Court of Appeals for the 8th Circuit
Campbell has been under dysphoria It is important to emphasize that there ruled by a vote of 2-1 on August 23
treatment since at least 2013, receiving is going to be a trial on injunctive relief that a commercial videographer could
hormones and some accommodation, in this case in any event. Thus, granting assert a 1st Amendment claim that
including wearing women’s underwear, qualified immunity from damages will it was privileged to refuse to make
but she continues to be housed at a not preclude the development of Eighth wedding videos for same-sex couples,
male facility. Using Cynthia Osborne Amendment law in this case. as an exemption from compliance
(from John Hopkins) as a consultant, With great respect to Judge Wood, with Minnesota’s Human Rights
Wisconsin officials denied gender this writer believes that the majority Act, which expressly forbids public
confirmation surgery, largely because may have the better tactical result on accommodations from discriminating
Campbell did not meet the “living 12 the advancement of the law in this area, because of a customer’s sexual
months as a woman” requirement of although none of the judges specifically orientation. Telescope Media Group v.
the guidelines for surgery of the World discusses this. It could well be Lucero, 2019 U.S. App. LEXIS 25320,
Professional Association of Transgender irresistible for granting certiorari that 2019 WL 3979621. The court reversed
Health (WPATH). It appears from one circuit has ruled that confirmation a decision by U.S. District Judge John
the decision that Osborne has relaxed surgery is never required as a matter of R. Tunheim, which had dismissed
her standards somewhat, at least for law while another circuit has held that a the videographer’s suit seeking a
prisoners serving a sentence as long defendant is answerable in damages for declaratory judgment and injunctive
as Campbell’s. Experts for the state denying it. Such a purely legal appraisal relief against Minnesota’s Department
disputed whether Campbell is a good could make unwelcome law – while of Human Rights. See Telescope Media
surgical candidate. now Kosilek and Edmo are reconcilable Group v. Lindsey, 271 F. Supp. 3d 1090
The question, as framed by the on their facts – and Gibson has no trial (D. Minn. 2017).
Seventh Circuit, is whether denial of record. It may be better to let injunctive Circuit Judge David Stras, an
confirmation surgery violates the Eighth cases involving surgery as a treatment appointee of President Donald Trump,
Amendment on these facts in this case as for severe gender dysphoria to percolate wrote for the majority, which included
a matter of law. The majority found that for a while. ■ Circuit Judge Bobby Shepard, an
it did not when the denial occurred, and appointee of President George W.
that the law remains unsettled nationally William Rold is a civil rights attorney in Bush. The dissent was by Circuit Judge
and in the Seventh Circuit. It notes that, New York City and a former judge. He Jane Kelly, who was appointed by
on the record before it, the First Circuit previously represented the American President Barack Obama, and is the
held that confirmation surgery was not Bar Association on the National only Democratic appointee now sitting
required by the Eighth Amendment in Commission for Correctional Health on the 8th Circuit in either an active or
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. Care. senior capacity. District Judge Tunheim
2014) (en banc). The Fifth Circuit held was appointed by President Bill Clinton.
that it is never required as a matter of Carl and Angel Larsen, who make
law in Gibson v. Collier, 920 F.3d 212, commercial videos under the corporate
220-21 (5th Cir. 2019). This writer notes name of Telescope Media Group, decided
that the Ninth Circuit has just affirmed they wanted to expand their business
a preliminary injunction requiring into wedding videos, but because of
confirmation surgery. Edmo v. Corizon, their religious beliefs, they did not want
__ F.3d ___, No.19-35017 (9th Cir., to get into this line of work if they would
August 23, 2019) (85-page slip opinion) be required to make videos for same-sex
– see above in this issue of Law Notes. weddings. Anticipating that a refusal to
6 LGBT Law Notes September 2019
make such videos would bring them directors like Steven Spielberg. This Court to overrule its precedents denying
into conflict with Minnesota’s Human was a specious comparison, not because religious free exercise exemptions from
Rights Law, they filed an action in Spielberg is a great filmmaker, but anti-discrimination laws, while at the
federal district court seeking a ruling because the Larsens do not produce same time creating a constitutional
that they had a 1st Amendment right to feature films or documentaries aimed at wedge issue for businesses whose goods
refuse such business. They argued that a public market, in which the content of or services might be characterized as
making wedding videos is an expressive the film is the speech of the filmmaker. “expressive.”
activity protected by the Free Speech Rather, they make films for hire, in Even though the Larsens do not
Clause, and that, although the Supreme order to communicate the message of presently make wedding videos, and
Court has ruled that people are not the customer who hires them. they do not claim that they have ever
excused from complying with neutral But Stras was convinced, writing, been approached to make a video of
state laws of general application based “The Larsens . . . use their ‘unique skills a same-sex wedding or threatened
on their religious beliefs, there was an to identify and tell compelling stories with prosecution for refusing to do
argument that when a religious free through video,’ including commercials, so, the court first determined that
exercise claim is intermingled with a short films and live-event productions. they have standing to seek their
claim based on another constitutional They exercise creative control over the declaratory judgment, because when
right (in this instance, free speech), the videos they produce and make ‘editorial the proposition was presented to
state may be required to accommodate judgments’ about ‘what events to take officials of the Minnesota Department
the person claiming constitutional on, what video content to use, what of Human Rights, they made clear
protection against enforcement of the audio content to use, what text to use . . that a refusal to provide videography
state law. ., the order in which to present content, services to same-sex couples would be
Judge Tunheim rejected their whether to use voiceovers.” In other considered a violation of the state’s anti-
constitutional arguments, dismissing words, they exercise their professional discrimination law. Thus, the Larsens
their lawsuit, and they appealed to the judgment to make the films ordered claimed to the satisfaction of the 8th
8th Circuit. Their case presents a parallel by their customers, but the customers Circuit panel that they faced a credible
to one of the earliest appellate rulings who are paying to have the films made threat of prosecution and had standing
rejecting a constitutional exemption ultimately determine what the message to bring the case.
from complying with a state public of the film will be. The Larsens’ role Turning to the merits, Stras wrote,
accommodations law on similar facts: is to translate that message into an “The Larsens’ videos are a form
Elane Photography, LLC v. Willock, effective filmic presentation. of speech that is entitled to First
309 P. 3d 53 (N.M. 2013), cert. denied, In describing their contemplated Amendment protection . . . although
134 S. Ct. 1787 (2014). In that case, the move into making wedding videos, the Larsens do not plan to make feature
New Mexico Supreme Court ruled that they want these videos to “capture the films, the videos they do wish to
a commercial wedding photographer background stories of the couples’ love produce will convey a message designed
who refused to make a photo album leading to commitment, the [couples’] to ‘affect public attitudes and behavior.’
for a lesbian couple celebrating their joy . . . the sacredness of their sacrificial According to their complaint, they
commitment ceremony did not enjoy a 1st vows at the altar, and even the following will tell ‘healthy stories of sacrificial
Amendment free speech or free exercise chapters of the couples’ lives.” love and commitment between a man
exemption from a state law banning “The Larsens believe that the videos, and a woman,’ depicting marriage as a
sexual orientation discrimination. That which they intend to post and share divinely ordained covenant, and oppose
court also rejected the photographer’s online, will allow them to reach ‘a broader the ‘current cultural narratives about
claim under New Mexico’s Religious audience to achieve maximum cultural marriage with which they disagree.’ By
Freedom Restoration Act, finding impact’ and ‘affect the cultural narrative design, they will serve as a ‘medium
that complying with the state’s regarding marriage.’” Presumably, they for the communication of ideas’ about
anti-discrimination law would not hoped to tap into the burgeoning on-line marriage. And like the creators of
substantially burden the photographer’s phenomenon of shared wedding videos, other types of films, such as full-length
freedom of religion. The U.S. Supreme which seem to have a considerable documentaries, the Larsens will exercise
Court denied Elane Photography’s audience. But their representation by substantial ‘editorial control and
petition to review the New Mexico Alliance Defending Freedom suggests judgment.’” He concluded, “The videos
court’s ruling. an ulterior motive, that the Larsens themselves are, in a word, speech.”
Judge Stras’s opinion based its have volunteered (or were recruited) to Stras insisted that applying the
conclusion on a conflation of the Larsens’ be plaintiffs as part of ADF’s strategy Minnesota Human Rights Act to the
business with the film studies that make to get a case to the Supreme Court Larsens’ business “is at odds with the
movies for public exhibition. During in hopes of broadening the rights of ‘cardinal constitutional command’
oral argument, the Larsen’s activities religious business owners to avoid against compelled speech. The
in making a video were likened to the complying with anti-discrimination Larsens to not want to make videos
work of prominent film producers/ laws, and perhaps even getting the celebrating same-sex marriage, which
September 2019 LGBT Law Notes 7
they find objectionable. Instead, they Circuit decisions where that court has Cakeshop v. Colorado Civil Rights wish to actively promote opposite-sex used the hybrid rights theory, making it Commission (2018), in which the weddings through their videos, which fair game for litigation within the circuit. reluctant baker had refused to make a at a minimum will convey a different The Supreme Court had articulated it wedding cake for a same-sex couple. In message than the videos the MHRA as a possible exception to the general that opinion, Kennedy acknowledged would require them to make.” rule in Employment Discrimination v. that religious and philosophical objects Stras insisted that this case fell into Smith, speculating that had the plaintiff to same-sex marriage enjoy First line with various U.S. Supreme Court been able to claim a violation of some Amendment protection, but “such precedents blocking the government other constitutional right in addition to objections do not allow business owners from compelling a private actor to free exercise of religion, he might have . . . to deny protected persons equal express a message they don’t want to a valid claim. But Stras insisted that the access to goods and services under a express, citing, among other cases, Court’s comments actually related to the neutral and generally applicable public Boy Scouts of America v. Dale, where holdings in some prior cases. However, accommodations law.” Judge Kelley the Court recognized the Scouts’ 1st he noted, “it is not at all clear that the observed, “That well-established Amendment right to ban gay men from hybrid-rights doctrine will make any principle should have easily disposed of serving as volunteer leaders of Scout real difference in the end” because this case.” troops. In that case, the Court said that the Court was already holding that the She contested Judge Stras’s attempt requiring the Scouts to let out gay James Larsens’ free speech claim “requires the to “recharacterize Minnesota’s law as a Dale be an assistant scoutmaster would application of strict scrutiny.” content-based regulation of speech.” She be compelling them to communicate a The court did reject the Larsens’ argued that the law does not compel the message of approval for homosexuality. alternative theories of freedom of Larsens to communicate any particular The ruling in that case was by a vote of association and equal protection. The message about marriage. “What they 5-4, overruling a 4-3 decision by the New former claim, if recognized, would cannot do,” she wrote, “is to operate Jersey Supreme Court. Stras also placed render anti-discrimination laws a public accommodation that serves great weight on the Supreme Court’s virtually unenforceable, and the latter customers of one sexual orientation but ruling in Hurley v. GLIB, holding that defeated by the general application of not others. And make no mistake,” she Massachusetts could not compel the the MHRA, which did not on its face continued, “that is what today’s decision Catholic veterans association that single out any particular group for affords them license to do.” She ran Boston’s St. Patrick’s Day Parade disfavored treatment. The court also asserted that the conduct in which the to include a gay Irish organization rejected the Larsens’ argument that Larsens wish to engage if they expand marching with a banner proclaiming the law was unconstitutionally vague, into the wedding video business would their identity, because that would be or imposed unconstitutional conditions involve denying services based on the forcing a message on to the parade upon the operation of a business in the sexual orientation of customers. “That that the organizers did not want to state. the service the Larsens want to make communicate. The court sent the case back to the available to the public is expressive does The consequence of Stras’s analysis district court with directions to “consider not transform Minnesota’s law into a was not only that the Larsens can assert in the first instance whether the Larsens content-based regulation, nor should it their free speech claim, but that the are entitled to a preliminary injunction, empower the Larsens to discriminate court must subject the application of keeping in mind the principle that ‘when against prospective customers based the MHRA to strict scrutiny, placing a plaintiff has shown a likely violation on sexual orientation.” The rest of her the burden on the state to prove that of his or her First Amendment rights, opinion takes much inspiration from requiring the Larsens to made same-sex the other requirements for obtaining a Justice Ruth Bader Ginsburg’s dissent wedding videos is necessary to fulfill a preliminary injunction are generally from the Court’s holding in Masterpiece. compelling government interest. deemed to have been satisfied.” Pointing to an earlier ruling, she The court also accepted the Larsens’ Judge Kelly’s dissent was several wrote, “The Supreme Court has already argument that they should be allowed to pages longer than the majority held that the MHRA is constitutional, assert a free exercise of religion claim opinion. “No court has ever afforded in the process rejecting many of the “because it is intertwined with their free ‘affirmative constitutional protections’ same arguments that the court adopts speech claim,” constituting a so-called to private discrimination,” she wrote. today. Just recently, it reaffirmed that, “hybrid rights claim.” The Supreme “Indeed, caselaw has long recognized although ‘religious and philosophical Court has mentioned that possibility in that generally applicable laws like objections [to same-sex marriage] are some cases, although it remains more Minnesota’s may limit the First protected, it is a general rule that such theoretical than precedential at this Amendment rights of an individual in objections do not allow business owners point because most legal analysts have his capacity as the owner of a business and other actors in the economy and in considered these mentions as not part of serving the public.” On this point, society to deny protected persons equal the holdings in the opinions where they she cited Justice Anthony Kennedy’s access to goods and services under a appear. But Stras pointed out two 8th opinion for the Court in Masterpiece neutral and generally applicable public 8 LGBT Law Notes September 2019
accommodations law.’ The Supreme
Court is free to revise or overturn its
2nd Circuit Holds That It Was Not “Clearly
precedents,” she continued. “We are not. Established” That Sexual Orientation
Rather than disturb bedrock principles
of law, I would affirm the district court’s Discrimination in Public Employment is
order in full.”
The state can seek review of Actionable under the Equal Protection
this decision by the full bench of
the 8th Circuit, but that circuit has Clause Prior to Obergefell and Windsor
an overwhelmingly Republican/ By Arthur S. Leonard
conservative tilt at present. Of the
eleven active judges, only one, Judge In the course of deciding an appeal by then assistant coach of the women’s
Kelly, was appointed by a Democratic some supervisory public employees of a basketball team, that she would be
president. Trump has managed to place district court’s refusal to accord them discharged if she did not resign. She
four judges on the court, where all but qualified immunity from a discharged resigned and filed her discrimination
one of the other judges was appointed employee’s claim of discrimination charges with the NY State Division of
by George W. Bush, with the senior- because of perceived sexual orientation Human Rights and the EEOC. After
most of the active judges having been (that took place in 2010), a panel of exhausting administrative remedies
appointed by the first President Bush. the U.S. Court of Appeals stated in against the school, she filed suit in
Clinton’s appointees have all died or Naumovski v. Norris, 2019 U.S. App. federal court, adding discrimination
retired. Perhaps the state should apply LEXIS 23891, 2019 WL 3770193 (Aug. claims under the Constitution against the
directly to the Supreme Court for 12, 2019), that it was not then “clearly Athletic Director and the Head Coach
review, but who is to say that Justice established” by the Supreme Court or of the team as well as the university
Kennedy’s comments, relied upon by the 2nd Circuit prior to the rulings in U.S. employer. Norris and Scholl sought
Judge Kelly, would find majority support v. Windsor and Obergefell v. Hodges unsuccessfully to get U.S. District Judge
on the Court now that Neil Gorsuch has that sexual orientation discrimination David Hurd to dispose of the claims
replaced Kennedy? ■ is actionable under in a 42 U.S.C. Sec. against them on grounds of qualified
1983 claim alleging a violation of the immunity, as part of his overall ruling
Equal Protection Clause. on motions for summary judgment, and
The opinion for the panel by Circuit this appeal to the 2nd Circuit concerns
Judge Jose Cabranes suggests that it Judge Hurd’s failure to grant their
might be “possible today that sexual motions, which he implicitly did by
orientation discrimination in public denying them summary judgment.
employment may be actionable under Naumovski, a single woman in her
Section 1983,” but at the time of the thirties, became the subject of rumors
conduct challenged in this case “such concerning her possible relationship
a constitutional prohibition was not yet with a woman on the team, identified
‘clearly established’” so the defendants in the opinion as J.W. Complaints from
were entitled to qualified immunity other students that Naumovski was
from the claim. In a footnote, Judge showing favoritism to this woman came
Cabranes acknowledged that as early as to the head coach and the then-assistant
1996, in Romer v. Evans, 517 U.S. 634, athletic director, James Norris, who,
and again in 2003, in Lawrence v. Texas, according to Judge Cabranes, “states
539 U.S. 558, the Supreme Court “had that he understood the rumors to refer
already begun to scrutinize laws that to a relationship of favoritism between
reflected ‘animosity’ toward gays,” but a coach and a student-athlete, rather
in this case the plaintiff had not alleged than to a sexual relationship between
“such class-based animosity or desire to the two.” Norris discussed these rumors
harm.” He also noted that under Engquist with the Athletic Director, “who
v. Oregon Dept. of Agriculture, 553 U.S. assured him that the allegations were
591 (2008), the plaintiff could not bring the baseless fabrications of disgruntled
a “class of one” equal protection case former members of the Binghamton
“simply on the basis that her termination Athletics community.” Norris was
was individually arbitrary.” promoted to the athletic directorship on
On March 10, 2010, Binghamton September 30, 2009.
University’s Athletic Director, James In response to the persisting rumors
Norris, informed Elizabeth Naumovski, during the fall term of 2009, Head
September 2019 LGBT Law Notes 9You can also read
