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2021 Authors' Update David B. Cruz & Jillian T. Weiss

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2021 Authors' Update David B. Cruz & Jillian T. Weiss Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. GENDER IDENTITY AND THE LAW 2021 AUTHORS’ UPDATE DAVID B. CRUZ & JILLIAN T. WEISS © 2021 David B. Cruz & Jillian T. Weiss Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. Copyright © 2021 David B. Cruz & Jillian T. Weiss All Rights Reserved This update is free of charge in courses requiring the associated textbook. Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 E-mail: [email protected] www.cap-press.com Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. TABLE OF CONTENTS Chapter 3 Anti-“Cross-Dressing” Laws ....................................................................................... 4 Chapter 4 Youth in Out-of-Home Care ........................................................................................ 5 Chapter 5 Employee Rights Under Civil Rights Laws and the Constitution ............................ 6 Chapter 6 Military Service ........................................................................................................... 10 Chapter 7 Public Accommodations and Housing ...................................................................... 14 Chapter 8 Parenting ..................................................................................................................... 15 Chapter 10 Religious Exemptions ............................................................................................... 49 Chapter 11 Health Insurance Exclusion and Discrimination ................................................... 51 Chapter 13 Student Rights Under Title IX and Other Laws .................................................... 53 Chapter 15 Name Changes and Naming Practices .................................................................. 108 3 Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. CHAPTER 3 ANTI-“CROSS-DRESSING” LAWS Insert the following before final paragraph on p.97: On February 3, 2021, New York Governor Andrew Cuomo signed Senate Bill 1351, thereby repealing New York State’s loitering for purposes of prostitution law or “walking while trans ban.” The legislation repealed New York Penal Law section 250.37, which explicitly prohibited “loitering for the purpose of engaging in a prostitution offense,” and amended section 240.37, which deals with affirmative defenses for prostitution. The bill received overwhelming support; the senate approved it 44 to 16, and the assembly passed the repeal by vote of 105 to 44. More than 90 New York organizations, as well as others including the Human Rights Campaign, had spoken out against the statute. The repeal was also supported by many district attorneys, including Nassau County DA Madeline Singas and Brooklyn DA Eric Gonzalez, whose office stopped prosecuting violations of the law even prior to its repeal. Despite its record of opposing criminal justice reform, the District Attorneys Association of the State of New York supported the legislation, saying that the loitering law had led to “harassment and unjust arrests.” Senate Bill 1351 was not derailed by Republicans’ efforts calling it “Spitzer’s Law” after the disgraced former governor and arguing that it showed the Democratic majority intended to legalize prostitution. These developments and background thereto are covered in Sammy Gibbons, New York Legislature Repeals “Walking While Trans” Loitering Law, THE JOURNAL NEWS (Jan. 29, 2021), at https://www.lohud.com/story/news/2021/01/29/new- york-expected-repeal-walking-while-trans-loitering-law/4311171001/ (last visited July 22, 2021); Bill Mahoney, Legislature Votes to Repeal Law Against Loitering for Purpose of Prostitution, Politico (Feb. 4, 2021), at https://www.politico.com/news/2021/02/04/legislature-votes-to-repeal- law-against-loitering-for- purpose-of-prostitution-465849 (last visited July 22, 2021); and NYCLU/ACLU of New York, Legislative Memo: Loitering Repeal (n.d.), at https://www.nyclu.org/en/legislation/legislative- memo-loitering-repeal (last visited July 22, 2021). 4 Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. CHAPTER 4 YOUTH IN OUT-OF-HOME CARE In the first line on p.109: Replace the citation to CAL. WELF. & iNST. CODE § 160013 with CAL. WELF. & iNST. CODE § 16013. 5 Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. CHAPTER 5 EMPLOYEE RIGHTS UNDER CIVIL RIGHTS LAWS AND THE CONSTITUTION Insert at the end of p.313: Note on Bostock’s First Year Lower courts have made significant rulings relying on Bostock in the year since the Supreme Court decided that landmark case. In addition to cases under Title VII, they have considered Bostock in cases involving equal protection, school athletics, housing, healthcare, and the interpretation of state statutes. Title VII In the Title Vii arena, courts have used Bostock to understand but-for causation, the McDonnell Douglas burden shifting doctrine, and discrimination in spousal benefits. In Peterson v. West TN Expediting, Inc., No. 20-5845, ___ Fed. Appx. ___, 2021 WL 1625226, at *2 (6th Cir. Apr. 27, 2021), the Sixth Circuit Court of Appeals cited Bostock in holding that a defendant’s merely having non-discriminatory reasons for an adverse employment action was irrelevant where the plaintiff claimed that another, unlawful factor motivated the action, using the more expansive understanding of but-for causation set out in Bostock. The Fifth Circuit Court of Appeals, by contrast, in Olivarez v. T-Mobile USA, Inc., 997 F.3d 595 (5th Cir. 2021), rejected the argument that Bostock created a more expansive understanding of causation than had previously prevailed; Bostock “did not alter the meaning of discrimination itself.” And so the court did not think that Bostock provided the plaintiff there grounds to reopen an adverse judgment under Federal Rule of Civil Procedure 59(e). Olivarez held that plaintiffs must identify facts making their claims of but-for discrimination plausible at the motion to dismiss stage. It also suggested in dicta that a plaintiff must prove the existence of a more favorably treated comparator at summary judgment, a result that seems in tension with Bostock’s formulation of but-for causation. In Corley v. Mercedes-Benz U.S. International, Inc., No. 7:19-CV-01400-LSC, 2021 WL 2042945, at *7 (N.D. Ala. May 21, 2021), a federal district court held that Bostock’s discussion of but-for causation did not make the McDonnell Douglas burden-shifting framework inapplicable. The court said that McDonnell Douglas is merely an evidentiary framework to help court decide whether there is a triable issue of fact, noting several cases in which the Eleventh Circuit applied McDonnell Douglas post-Bostock. In Pidgeon v. Turner, ___ S.W.3d ___, No. 14-19-00214-CV, 2021 WL 1686746, at *14 (Tex. App. Apr. 29, 2021), a Texas appellate court held that Bostock meant that denial of employment benefits to same-sex spouses would likely violate Title VII. (This and related litigation dated back to 2013, before the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 576 U.S. 644 (2015), when then Houston mayor Annise Parker directed that city employees validly married in another state to a person of the same sex be afforded the same benefits provided to employees with a married different-sex spouse.) Equal Protection The Eleventh Circuit Court of Appeals cited Bostock in holding that the Equal Protection Clause protected a transgender student from a bathroom policy that prevented him from using the boys’ 6 Copyright © 2021 David B. Cruz & Jillian T. Weiss. All rights reserved. bathroom at a county high school. Adams v. Sch. Bd. of St. Johns Cty., Fla., No. 18-13592, F.4th , 2021 WL 2944396 (11th Cir. July 14, 2021). A federal district court in Indiana held that a county prisoner was protected from disparate treatment based on sexual orientation, citing Bostock. Alsanders v. Martain, No. 3:20-CV-858-RLM-MGG, 2021 WL 2453945, at *1 (N.D. Ind. June 16, 2021). In Monegain v. Department of Motor Vehicles, 491 F. Supp. 3d 117, 141-42 (E.D. Va. 2020), a federal district court in Virginia cited Bostock in holding that a dress code policy applicable to a transgender state employee, preventing her from dressing in clothing appropriate to her gender, stated a claim under the Equal Protection Clause. A California state appeals court cited Bostock in rejecting the claim that a law making it unlawful for a long-term care facility to assign rooms based on transgender status except at the transgender resident’s request violated cisgender residents’ equal protection rights. Taking Offense v. State, No. C088485, ___ Cal. Rptr. 3d ___, 2021 WL 3013112, at *10 (Cal. Ct. App. July 16, 2021). School Athletics A federal district court in West Virginia cited Bostock in ruling that a state statute prohibiting transgender students from participating in gender-appropriate sports teams violated Title IX. The Court held that “[h]er sex ‘remains a but-for cause’ of her exclusion under the law.” B.P.J. v. W. Virginia State Bd. of Educ., No. 2:21-CV-00316, ___ F. Supp. 3d. ___, 2021 WL 3081883, at *7 (S.D.W. Va. July 21, 2021). A federal district court in Connecticut, in rejecting a challenge to the transgender-inclusive participation policy of the Connecticut Interscholastic Athletic Conference, the governing body for interscholastic athletics in Connecticut, which permits high school students to participate in sex-segregated sports consistent with their gender
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