Monday, August 6, 2018

Federal Judge: Injunction Against Transgender Military Ban Retained

United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of  the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions.  Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.

The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.

In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Lossy-page1-1024px-Revolutionary_War_era_soldier_(NYPL_b13075512-em1481).tifImplementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:

the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).

[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive." 

However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that

Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.

She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation 

can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.

Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but

the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.

While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).

 

[image via]

August 6, 2018 in Courts and Judging, Equal Protection, Executive Authority, Gender, Medical Decisions, Mootness, Opinion Analysis, Standing | Permalink | Comments (0)

Monday, June 18, 2018

Third Circuit Upholds School Policy on Gender Identity Use of Facilities

In its opinion in Doe v. Boyertown Area School District a unanimous panel of the Third Circuit upheld the school district's gender policy for facilities, affirming the district judge, against a challenge by some students that the inclusive policy violated their constitutional "bodily privacy" rights and Title IX.

The school policy allowed "transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth." The court rejected the argument of some non-transgender students that the policy violated their right to privacy. Even if the school policy were to be subject to strict scrutiny, there was a compelling interest in the protection of transgender students and the means chosen were narrowly tailored. In assessing the claim of the cisgendered students who challenged the school policy, the court stated:

we decline to recognize such an expansive constitutional right to privacy—a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no court has ever done so. As counsel for the School District noted during oral argument, the appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private. School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected. The facilities exist so that students can attend to their personal biological and hygienic needs and change their clothing.

Moreover, the court rejected the challengers' reliance on "a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower," noting that it was "simply not analogous to the present situation "involving transgender students using facilities aligned with their gender identities after seeking and receiving approval from trained school counselors and administrators."

The court likewise rejected the Title IX and state tort law claims, again affirming the district judge.

While the court discusses and relies upon Whitaker v. Kenosha Unified School District, in which the Seventh Circuit in 2017 affirmed a preliminary injunction requiring the school to allow transgender students to access facilities consistent with their gender identity, the policy upheld here was the Boyertown school district's affirmative policy allowing such access. Thus, there seems to be a clear path for school districts to avoid losing if there is litigation.

 

June 18, 2018 in Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Thursday, May 17, 2018

Zervos v. Trump Stay Denied

In a terse ruling in Zervos v. Trump, the appellate division in New York cleared the stage for the defamation lawsuit against the president to move forward.

Recall that the trial judge, stating that "No one is above the law," ruled  the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

The entire appellate division opinion reads:

An appeal having been taken from an order of the Supreme Court, New York County, entered on or about March 20, 2018,

And defendant-appellant having moved for a stay of the action pending hearing and determination of the aforesaid appeal,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is denied.

May 17, 2018 in Executive Privilege, First Amendment, Gender | Permalink | Comments (0)

Sunday, April 22, 2018

Puerto Rico District Judge Rules on Gender-Marker Birth Certificates

In a relatively brief opinion in Arroyo-Gonzalez v. Rossello-Nevares, United States District Judge for the District of Puerto Rico Judge Carmen Consuelo Cerezo ruled that the present practices of the Commonwealth of Puerto Rico regarding change in birth certificates was unconstitutional.

Here is the essence of Judge Cerezo's opinion:

By permitting plaintiffs to change the name on their birth certificate, while prohibiting the change to their gender markers, the Commonwealth forces them to disclose their transgender status in violation of their constitutional right to informational privacy. Such forced disclosure of a transgender person’s most private information is not justified by any legitimate government interest. It does not further public safety, such that it would amount to a valid exercise of police power. To the contrary, it exposes transgender individuals to a substantial risk of stigma, discrimination, intimidation, violence, and danger. Forcing disclosure of transgender identity chills speech and restrains engagement in the democratic process in order for transgenders to protect themselves from the real possibility of harm and humiliation. The Commonwealth’s inconsistent policies not only harm the plaintiffs before the Court; it also hurts society as a whole by depriving all from the voices of the transgender community.

The judge thus set out the process to enable a new birth certificate to be issued in Puerto Rico.

 

April 22, 2018 in Due Process (Substantive), Gender, Opinion Analysis, Privacy | Permalink | Comments (0)

Saturday, April 14, 2018

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Nypl.digitalcollections.a20151f8-d3cf-5c25-e040-e00a18066189.001.wRejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

  • whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
  • whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)

Tuesday, March 20, 2018

SCOTUS Hears Oral Arguments on First Amendment Challenge to Regulation of Crisis Pregnancy Centers

The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act)

The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.

876px-What's_Sauce_For_The_Gander_Is_Sauce_For_The_Goose_(9558708758)The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion."  Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.

Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment).  Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.

The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"? 

Will it be sauce for the goose as well as for the gander? 

The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases. 

[image via]

March 20, 2018 in Abortion, Due Process (Substantive), Family, First Amendment, Fundamental Rights, Gender, Oral Argument Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos

In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?

Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."

Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:

Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”

A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . .  His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda.  Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .  

 Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.

4096px-Hans_Makart_-_Allegory_of_the_Law_and_Truth_of_Representation_-_Google_Art_Project

image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via

 

March 20, 2018 in Courts and Judging, Executive Privilege, Federalism, First Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Wednesday, March 14, 2018

Federal District Judge: Equal Protection Prohibits Policy Banning Transgender Student from Facilities

In his opinion in M.A.B. v. Board of Education of Talbot County, United States District Judge George Russell, III of the District of Maryland denied the motion to dismiss by the school board of a challenge to its decision to require M.A.B., a transgender boy, to use restrooms and locker rooms for girls.

Judge Russell first found that the school's decision violated Title IX, 20 U.S.C. § 1681(a), entering the murky waters left by the United States Supreme Court's stay and vacation of the Fourth Circuit's decision in G.G. v. Glouster County School Board after the Trump Administration change interpretation of the anti-discrimination policy.

Judge Russell also decided that the school's decision violated the Equal Protection Clause, in an extensive discussion relying upon the developing transgender equal protection doctrine, including the Seventh Circuit's 2017 decision in Whitaker v. Kenosha Unified School District as well as the Eleventh Circuit's decision in Glenn v. Brumby, the only two circuits to have ruled on the issue, and district court cases in the school context such as Evanacho v. Pine-Richland School District and those regarding the transgender military ban such as Doe v. Trump and Stone v. Trump

Judge Russell found that classifications based on transgender status merit intermediate scrutiny for two reasons. First, he found that transgender classifications were tantamount to sex classifications, specifically discussing sex-stereotyping.

Second, he found that "transgender individuals are, at minimum, a quasi-suspect class," under a four-factor test similar to that first articulated in Carolene Products footnote 4:

  • whether the class has been historically “subjected to discrimination;”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society;"
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;”  and
  • whether the class is “a minority or politically powerless.” 

FootnoteJudge Russell then analyzed each of these factors, with an interesting reference in a footnote, and found them satisfied, concluding that intermediate scrutiny was appropriate, and quoting the standard as that articulated in United States v. Virginia (VMI). 

While Judge Russell's opinion seemed to cast some doubt on whether the school board's proffered privacy rationale could satisfy the "important" prong, especially as described in VMI, he noted that the procedural posture of the decision was a motion to dismiss. However, even assuming privacy was an important interest, he concluded that the means chosen - - - the banning of the transgender male student from male bathrooms and locker rooms - - - was not substantially related to the privacy interest. Again, Judge Russell quoted Whitaker rejecting the school board's attempt to distinguish it on the basis that locker rooms were not at issue in the Seventh Circuit case and stated that Whitaker's "reasoning applies with similar force."Judge Russell then countered the school board's argument that "if M.A.B. changing clothes in the designated restrooms makes him feel humiliated and embarrassed, as well as alienated from his peers, then students who use those restrooms for greater privacy will feel the same way," with four separate reasons why the argument was flawed. For example, Judge Russell wrote that the school board's argument "overlooks the entire context surrounding the Policy:  "It singles M.A.B. out, quite literally because it does not apply to anyone else at the High School, and marks him as different for being transgender."  On the contrary, Judge Russell wrote, "a boy who makes the personal choice to change clothes in a single-use restroom or stall does not experience any such singling out at the hands of his school."

Judge Russell, however, did not grant M.A.B.'s motion for preliminary injunction, given M.A.B.'s status for the current school year, but "aware that the parties likely hope for a resolution to this case before the following school year," directed "the parties to confer and submit to the Court a joint proposed scheduling order." 

March 14, 2018 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Sexuality | Permalink | Comments (0)

Wednesday, March 7, 2018

Stormy Daniels Sues President Trump: Is the President Immune?

 Stephanie Clifford, aka Stormy Daniels, aka Peggy Peterson has filed a complaint in California state court seeking a declaratory judgment that a "Hush Agreement" she signed regarding a nondisclosure agreement is invalid. Her attorney posted access to a copy of the complaint and the underlying agreements:

 

The complaint seeking declaratory judgment again implicates the issue of whether Trump, as the current President of the United States, is immune, even temporarily, from suit.  In Clinton v. Jones (1997), the United States unanimously held that then-President Clinton was not immune from a federal law suit for sexual harassment arising from events before he became President.  Should the outcome be different if the lawsuit is in state rather than federal court? Recall that this same issue arises in Zervos v. Trump, a suit for defamation filed in New York state court. Recall also our discussion of an amicus brief by three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court argue that the rule should apply to state court as well. The President's motion to dismiss or for a stay has not yet been decided. (Trump is also seeking dismissal on the merits of the defamation claim contending that the allegations are not actionable as defamation).

The fact that the President has engaged in numerous other lawsuits while President does tend to dilute any "distraction" claim under Clinton v. Jones.

March 7, 2018 in Executive Authority, Executive Privilege, Gender, Sexuality | Permalink | Comments (0)

Monday, February 12, 2018

Ninth Circuit Recognizes Right to Intimate Association for Police Employee

In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."

Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."

Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > Affair_at_the_InnHowever, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:

Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”

Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy." 

"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct,  Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.

[citations omitted].

Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.

Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.

The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination. 

February 12, 2018 in Association, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Procedural Due Process, Sexuality | Permalink | Comments (0)

Tuesday, January 23, 2018

Daily Video: Watch Justice Ginsburg Talk About Her Career and #MeToo

 Worth a watch is a 90 minute video discussion by Justice Ruth Bader Ginsburg being interviewed by Nina Tottenburg.

Noteworthy are Ginsburg's comments about sexual harassment by a male professor, her reactions to the #MeToo phenomenon, and her responses to her own icon status.

 

 

 

January 23, 2018 in Gender, Supreme Court (US) | Permalink | Comments (0)

Wednesday, January 17, 2018

Ninth Circuit Rejects Constitutional Challenge to California's Criminalization of Commercial Sex

In its opinion in Erotic Service Provider Legal Education and Research Project v. Gascon, the Ninth Circuit affirmed the district judge's dismissal of a constitutional challenge to California Penal Code § 647(b) which criminalizes the commercial exchange of sexual activity.

Judge Jane Restani, writing for the unanimous panel, rejected that claim that the United States Supreme Court's landmark decision in Lawrence v. Texas (2003) conferred a fundamental right to sexual intimacy under the Fourteenth Amendment's Due Process Clause.  Restani's opinion declares that "whatever the nature of the right protected in Lawrence, one thing Lawrence does make explicit is that the Lawrence case “does not involve ... prostitution,” quoting from what some have called Lawrence's "caveat paragraph." 

Given that there was no fundamental right at stake, the Ninth Circuit then applied rational basis and found there were several legitimate purposes found by the district court including links between commercial sex and trafficking in women and children; creating a "climate conducive to violence against women;" a "substantial link between prostitution and illegal drug use," and a link between commercial sex and "the transmission of AIDS and other sexually transmitted diseases." Judge Restani's opinion then summarily rejected the argument that the criminalization of commercial sex actually exacerbated the very problems it sought to remedy, stating that such assertions do not undermine the “rational speculation” sufficient to sustain the statute. The opinion relied on  FCC v. Beach Communications (1993) for its highly deferential rational basis standard, despite the constitutional doctrine in Beach Communications being equal protection (albeit under the Fifth Amendment) rather than due process.

512px-Female_convicts_at_work_in_Brixton_Women's_Prison_(after_Mayhew_&_Binny_1862)

[image, "Female convicts at work in Brixton Women's Prison," UK 1862 via]

The Ninth Circuit was no more receptive to the other constitutional challenges.  On the First Amendment free association claim, the court found that this was more properly analyzed as due process, and thus the rejection of the due process claim was dispositive. On the "right to earn a living" claim under due process, the court again relied on Lawrence's exclusion of commercial sex.  Finally, on the First Amendment free speech claim, the court considered the solicitation of commercial sex as speech and analyzed it under the landmark test of  Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y (1980). The court noted that the first prong regarding the exclusion for "unlawful activity" was determinative, but nevertheless continued, and briefly applied the other parts of the Central Hudson and found the statute did not violate the First Amendment.

In this 20 page opinion, the Ninth Circuit both manages to take the constitutional challenges to the criminalization of commercial sex seriously and to repudiate them. 

 

January 17, 2018 in Due Process (Substantive), First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Monday, January 1, 2018

Daily Read: Reconstructing the (Male) Voice of Authority

 Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).

While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues

1024px-Penelope_(the_faithful_wife_of_Odysseus) _from_Rome _Hadrianic_copy_of_Greek_work_from_5th_century_BC _Ny_Carlsberg_Glyptotek _Copenhagen_(12948415925)until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.

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Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
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Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
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Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
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Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.

Perhaps it is because there is a continued effort to police women's voices. As Salmon states:

And, as modern  moot- court wisdom would have it, the voice of authority is still a deep and  resonant one. No lesser authorities than U.S. Supreme Court Justice  Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that  “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books  and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the  connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.

Salmon's article ends with a "menu of solutions" particular to moot court, but they could easily be translated to issues of sexual harassment as well as judicial diversity and constitutional equality.
 
[image: "Penelope (the faithful wife of Odysseus)" 5th C. BCE via]

 

January 1, 2018 in Courts and Judging, Current Affairs, Gender, Scholarship, Teaching Tips | Permalink | Comments (0)

Sunday, December 31, 2017

Chief Justice Roberts' Year End Report Highlights Disasters and Harassment

In his 2017 Year-End Report on the Federal Judiciary United States Supreme Court Chief Justice concentrated on disaster-preparedness, stating that

we cannot forget our fellow citizens in Texas, Florida, Puerto Rico, and the Virgin Islands who are continuing to recover from Hurricanes Harvey, Irma, and Maria, and those in California who continue to confront historic wildfires and their smoldering consequences. The courts cannot provide food, shelter, or medical aid, but they must stand ready to perform their judicial functions as part of the recovery effort.

As part of the effort to maintain judicial functions, Roberts' noted that the Administrative Office of the United States Courts has established an Emergency Management and Preparedness Branch, including having response teams. He added:

I recognize that this might sound like trying to fight fire with administrative jargon. But imagine yourself one of a handful of employees of the bankruptcy court in Santa Rosa, California, when raging wildfires suddenly approach the courthouse where you work and state officials order evacuation—as happened this past September. The staff members did not face the emergency alone; they had at their disposal a professional response team to assist in making quick decisions to protect personnel, relocate services, and ensure continuity of operations.

He also lauded the oft-forgotten territories in the United States that have been coping with the after-effects of disaster:

The hurricanes brought flooding, power outages, infrastructure damage, and individual hardship to Texas and Florida. But the judicial districts of the Virgin Islands and Puerto Rico were especially hard hit. Judges and court employees responded in dedicated and even heroic fashion. They continued to work even in the face of personal emergencies, demonstrating their commitment to their important public responsibilities.

800px-Official_roberts_CJAnd he pointed out that the obligation of the judicial system included persons subject to the courts’ continuing jurisdiction, including those who are imprisoned, as well as other challenges.

Roberts' ended the 16 page report with a segue to the "new challenge" of dealing with the "depth of sexual harassment."

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.

I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues. I expect the working group to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints. These concerns warrant serious attention from all quarters of the judicial branch. I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

Roberts' is undoubtedly responding to the high-profile resignation of Ninth Circuit Judge Alex Kozinski and public letters from former law clerks, professors, and others to address the issue of inappropriate conduct by federal judges.

What might have also been in the report?  The need for diversity among Article III judges, especially given the tendency of the recent and current nominations to be white and male.

December 31, 2017 in Courts and Judging, Gender, Jurisdiction of Federal Courts, News, Race | Permalink | Comments (0)

Monday, December 11, 2017

Another District Judge Issues Preliminary Injunction Against Transgender Military Ban

 A third district judge has issued a preliminary injunction against the President's ban on transgender troops in the military.  In her opinion in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington issued a preliminary injunction on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims.

Recall that after several tweets this past July, embedded President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." Recall that in October, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives. Recall that in November, United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures. 

In Karnoski, Judge Pechman finds that the individual plaintiffs, the organizational plaintiffs, and the State of Washington all have standing to challenge the Presidential Memorandum and that the claims are ripe. She does grant the motion to dismiss as to the procedural due process claim.

On the merits, Judge Karnoski's analysis is succinct.  She concludes that the policy "distinguishes on the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny." She then states that while the government defendants "identify important governmental interest including military effectiveness, unit cohesion, and preservation of military resources, they failed to show that the policy prohibiting transgender individuals from serving openly is related to the achievements of those interests." Indeed, she concludes, the reasons proffered by the President are actually contradicted by the studies, conclusions, and judgment of the military itself," quoting and citing Doe v. Trump.

Departing from the earlier cases, Judge Pechman also finds the plaintiffs have a likelihood of success on a substantive due process claim based on a fundamental liberty interest:

The policy directly interferes with Plaintiffs' ability to define and express their gender identity, and penalizes plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.

On the First Amendment claim, Judge Pechman concludes that the "policy penalizes transgender service members but not others for disclosing their gender identity, and is therefore a content based restriction."

She then quickly finds that on balance, the equities weigh in favor of the preliminary injunction.

With this third court finding the Presidential Memorandum has constitutional deficiencies, the transgender ban is unlikely to go into effect by January 1.  Additionally, the Pentagon has reportedly announced that the ban will not take effect.

 

 

December 11, 2017 in Due Process (Substantive), Equal Protection, Executive Authority, First Amendment, Gender, Opinion Analysis, Recent Cases, Ripeness, Standing | Permalink | Comments (0)

Monday, October 30, 2017

District Judge Partially Enjoins President's Transgender Military Ban

 In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.

Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the TG TweetsPresident's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.

Judge Kollar-Kotelly wrote:

Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

These arguments, while perhaps compelling in the abstract, wither away under scrutiny.

Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive"  In fact, the plaintiffs' medical procedures would be performed.  However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,

The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.

Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”

Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.

First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering  whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.

Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."

In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests.  The opinion then considered the question of deference in the military context:

Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.

The opinion also considered "the circumstances surrounding the announcement of the President’s policy":

the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.

Expect the government to appeal as well as opinions in the other pending cases.

 

October 30, 2017 in Current Affairs, Equal Protection, Executive Authority, Fifth Amendment, Gender, Medical Decisions, Opinion Analysis, Ripeness, Sexuality, Standing | Permalink | Comments (0)

Wednesday, September 27, 2017

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

 In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe.  The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear. 

Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great.  Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw.  The court agreed, even though the university had no ability to compel Jane Roe's appearance.  The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.

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The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high."  The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:

However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.

The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.

The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal. 

These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both),  no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.

 

September 27, 2017 in Current Affairs, Gender, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Monday, August 28, 2017

Lawsuits Filed Against Transgender Troop Ban

 Late Friday August 25, President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex."  By Monday, there were at least three lawsuits challenging the action on constitutional grounds.

A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.

TWEETS

Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole.  Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.

On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories.  In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power.  In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."

However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.

While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.

This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief. 

 

August 28, 2017 in Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Gender, Sexuality, Speech, Theory | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS holds Gender-Differential in Unwed Parents Citizenship for Child Violates Equal Protection

 In its opinion in Sessions v. Morales-Santana, the United States Supreme Court has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections.  Recall that the Second Circuit had held there was an equal protection violation and had subjected the  the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.  The Supreme Court opinion in Morales-Santana, authored by Justice Ginsburg (who also wrote VMI), was joined by Chief Justice Roberts, Kennedy, Breyer, Sotomayor, and Kagan.  Justices Thomas and Alito briefly dissented.

But while the Court's opinion affirms the Second Circuit's constitutional conclusion, it nevertheless holds that Morales-Santana is not entitled to relief, reversing the Second Circuit on that point.

Fabritius_-_van_der_HelmThe Court first rehearses the complicated statutory scheme and facts. The Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents.  His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975.   In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.  Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth.  Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.

The Court finds that the Morales-Santana has standing to raise the differential as applied to his parents and that the difference between unwed mothers and unwed fathers is "of the same genre of classifications" as the one in landmark sex equality cases, thus "heightened scrutiny is in order."  The Court finds that there is no exceedingly persuasive justification and notes that the statutory scheme dates "from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  The Court also concluded that previous immigration cases, such as Nguyen v. INS (2001) which upheld gender discrimination regarding establishment of paternity were not controlling.  The Court rejected the government's rationale of "risk-of-statelessness" for the children as being "an assumption without foundation."

Despite the Court's resounding conclusion that the provision violates equal protection, the Court declines to extend the shorter unwed mother residency period to the unwed father.  Instead, the "right of equal treatment" here should be a withdrawal of benefits from the favored class (women) rather than an extension of benefits to the disfavored class (men).  The Court states that any choice between the methods of achieving equal treatment "is governed by the legislature's intent, as revealed by the statute at hand."  Thus, although the general approach is extension of benefits, because the statutory general rule was the longer one, the exception for favorable treatment is the one that should be stricken.

Thus, this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.

[image via]

June 12, 2017 in Courts and Judging, Equal Protection, Family, Fifth Amendment, Gender, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, May 30, 2017

Seventh Circuit Affirms Preliminary Injunction Against School District in Transgender Sex-Segregated Restroom Case

In its opinion in Whitaker v. Kenosha Unified School District, Judge Ann Williams begins for the unanimous panel including Chief Judge Diane Wood and Judge Illana Rovner, by stating that  the issue would seem to be a "simple request: to use the boys' restroom while at school," but the school district believed it was "not so simple because Ash is a transgender boy."

The Seventh Circuit decision to affirm the preliminary injunction directing the school district allowing the plaintiff, a transgender student, Ash (also known as Ashton), to use the boy's restroom rests both on Title IX and the Equal Protection Clause.  As a preliminary issue, the court found that pendent jurisdiction of the district court's order denying the school district's motion to dismiss was not appropriate.

On the likelihood to succeed on the merits of Title IX, the court considered companion Title VII doctrine in the circuit, including the doctrine of sex-stereotyping.  The fact that Congress has not added transgender status to Title IX (or Title VII) was not determinative.  Instead,

Custom-boys-restroom-school-braille-sign-se-3937Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX. The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act. Further, based on the record here, these gender‐neutral alternatives were not true alternatives because of their distant location to Ash’s classrooms and the increased stigmatization they caused Ash. Rather, the School District only continued to treat Ash differently when it provided him with access to these gender‐neutral bathrooms because he was the only student given access.

And, while the School District repeatedly asserts that Ash may not “unilaterally declare” his gender, this argument misrepresents Ash’s claims and dismisses his transgender status. This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This law suit demonstrates that the decision to do so was not without cost or pain.

On the Equal Protection Clause claim, the court found that "the School District's policy cannot be stated without referencing sex" and thus the correct level of scrutiny should be the heightened one for sex classifications, citing United States v. Virginia (VMI) (1996).  The court rejected the District's asserted interest of protecting the "privacy rights" of all the other students as too abstract and conjectural to be genuine.  Moreover, the court faulted the representation at oral argument regarding the necessity for a birth certificate by first noting that this was not in the policy itself, and later returning to the issue regarding passports. Perhaps more importantly, the court also critiqued the notion of documents to prove sex designations:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that is ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.

 Thus, court found the School District did not satisfy the equal protection standard of United States v. Virginia. 

Recall that the district judge in Evancho v. Pine-Richland School District reached a similar conclusion on the Equal Protection Clause in February, and the constitutional claim seems to have more traction given the Title IX claim's uncertainty after the Court's dismissal and remand of  G.G. v. Glouster County School Board.

 

May 30, 2017 in Cases and Case Materials, Equal Protection, Fourteenth Amendment, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0)