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L AW N O T ESummer S 2016

NOT WITHIN OUR CONSTITUTIONAL TRADITION Federal Judge Blocks Entire “Freedom of Conscience” Act in Mississippi

© 2016 LGBT Law Notes & the LGBT Law Notes Podcast are Publications of the LeGaL Foundation. LGBT EXECUTIVE SUMMARY

265 Federal Court Enjoins Implementation L AW N O T E S of Mississippi H.B. 1523 Editor-In-Chief 269 Federal Trial Courts Divided Over Title Prof. Arthur S. Leonard VII Sexual Orientation Discrimination New York Law School Claims 185 West Broadway New York, NY 10013 273 Restrictive Definition of Employment (212) 431-2156 Presents a Challenge to Discrimination [email protected] Claimants [email protected]

274 Federal Judge Orders Indiana to List Contributors Two Moms on Birth Certificates Bryan Johnson-Xenitelis, Esq. William J. Rold, Esq. 275 Maryland High Court Adopts De Facto Matthew Skinner, Esq. Parent Standing for Lesbian Co-Parents Timothy Ramos, NYLS ‘19 Matteo M. Winkler, Esq. 277 Michigan Appeals Court Rejects Lesbian Co-Parent Standing in Production Manager Visitation Suit Leah Harper

279 Massachusetts Gay Man’s Workplace Circulation Rate Inquiries Discrimination Case Survives Summary LeGaL Foundation Judgment @ The Centre for Social Innovation 601 West 26th Street, Suite 325-20 280 Federal Court Agrees to Let VAWA New York, NY 10001 Funding in North Carolina to Continue (212) 353-9118 / [email protected] During Pendency of H.B. 2 Lawsuit Inquire for rates. 281 Federal Magistrate Orders Jail Officials’ LGBT Law Notes Archive Personal E-Mail Searched for Evidence http://www.nyls.edu/jac of Transphobic Bias in Medical Case LGBT Law Notes Podcast 282 Federal Court Rules New York Medicaid Listen to/download the Must Cover Medically Necessary LGBT Law Notes Podcast Cosmetic Surgery for Gender on iTunes (“search LGBT Legal”), Transitions or at http://legal.podbean.com.

283 Italian Supreme Court Allows © 2016 Stepparent Adoption for Same-Sex The LeGaL Foundation Couples of the LGBT Bar Association of Greater New York 284 Massachusetts Appeals Court Vacates http://le-gal.org Statutory Rape Conviction Because of Improper Admission of Gay Porn in ISSN Evidence 8755-9021

286 Notes 327 Citations LGBT Law Notes welcomes authors interested in becoming a contributor to the publication to contact [email protected]. Federal Court Enjoins Implementation of Mississippi H.B. 1523

.S. District Judge Carlton W. also a named defendant, hinted he might protection for clerks who do not want to Reeves announced on June 27 not be joining that appeal, suggesting issue same-sex marriage licenses was Uthat he would order Mississippi that religious folks in Mississippi had no more violative of the Establishment officials not to enforce part of H.B. 1523, been “duped” by the legislature enacting Clause than laws in more than 40 states a recently-enacted state law scheduled a useless and probably unconstitutional exempting those with objections to to go into effect on July 1, because it measure. Subsequently, Hood signaled abortions from having to participate in would circumvent the Supreme Court’s that he definitely would not join the them. Indeed, they argued, there is a 2015 ruling requiring states to afford appeal, stating that the law had hurt well-established practice in American equal marriage rights to same-sex the state’s reputation and that it should law recognizing exemptions from couples. The challenged provision, expend resources on defending it when general legal obligations for those whose Section 3(8)(a), allowed Circuit Court there were so many other underfunded religious or moral scruples compel Clerks to “recuse” themselves from initiatives. them to refrain from actions. They issuing marriage licenses to same-sex On July 7, Governor Bryant filed a cited as other examples conscientious couples if they have a sincere religious motion informing Judge Reeves that he objection from military service or from belief opposed to same-sex marriage. intended to appeal to the 5th Circuit, dispensing contraceptives. They also The provision says that same-sex and asking that the injunction be stayed argued that H.B. 1523 avoids inflicting couples will be entitled to get marriage and the law be allowed to go into effect any harm on same-sex couples by licenses, but provides no mechanism to pending the appeal, according to news requiring that steps be taken to assure

Judge Reeves granted a preliminary injunction against the entire statute based on his finding that it probably violated both the 1st and 14th Amendments.

make sure that they can get them in case reports on July 8 (Memphis Commercial that they are not delayed in obtaining there is nobody in a particular clerk’s Appeal). Of course, his motion could marriage licenses as a result of a clerk’s office who has not recused himself only succeed if Judge Reeves agreed recusal (although the statute does not or herself. The Order is published as that the governor likely to prevail specify how that assurance will be Campaign for Southern Equality v. on the merits in his appeal. (One implemented). They also argued that Bryant, 2016 U.S. Dist. LEXIS 83036, constitutional law professor was quoted the Mississippi law does not require 2016 WL 3574410 (S.D. Miss., June in a local newspaper as stating that the anybody to discriminate against gay 27, 2016). Then, just days later, as H.B. Establishment Clause conclusion was people. 1523 was scheduled to go into effect on so clear that he would not use it as an In his June 27 Order, recalling a 1962 July 1, Judge Reeves issued a lengthy exam question.) When Reeves did not ruling by the U.S. Court of Appeals for decision in two other pending cases, immediately issue a ruling staying his the 5th Circuit, Meredith v. Fair, 305 granting a preliminary injunction preliminary injunction, Bryant had a F.2d 343, which “chastised our State against the entire statute based on his motion filed in the 5th Circuit on July 11, for ‘a carefully calculated campaign finding that it probably violated both urging the court to issue a stay without of delay and masterly inactivity” in the 1st and 14th Amendments. Barber waiting for Reeves to rule. At the heart response to federal desegregation v. Bryant, 2016 U.S. Dist. LEXIS 86120, of Bryant’s motion was the contention orders, Judge Reeves announced that 2016 WL 3562647 (S.D. Miss., June 30, that H.B. 1523 did not present any sort he would “reopen” the Mississippi 2016). Although Governor Phil Bryant, of serious Establishment Clause issue. marriage equality case “for the parties a Republican who is the lead defendant His counsel (Drew L. Snyder, James to confer about how to provide clerks in all three cases, announced a swift A. Campbell [of Alliance Defending with actual notice of the Permanent appeal to the 5th Circuit, Attorney Freedom], and the James Otis Law injunction” and for the parties “to confer General Jim Hood, a Democrat who is Group LLC) argued that the conscience on appropriate language to include in

Summer 2016 LGBT Law Notes 265 an Amended Permanent Injunction.” As cases from other states in the circuit in this “privilege” was not necessary noted below, he came back to this theme January 2015, put a hold on the appeal to “protect” free exercise of anti-gay in his June 30 order, comparing the until the Supreme Court decided the religious views by Mississippians, language with which Governor Bryant Obergefell case. especially as the state already had a had criticized the Obergefell decision The Obergefell decision, announced Religious Freedom Restoration Act in and the language used by segregationist on June 26, 2015, said that same-sex place that would at least arguably protect Mississippi governors in the 1950s and couples were entitled to enter into civil individuals against undue burden of 1960s to criticize the Supreme Court’s marriages “on the same terms and their religion if the state didn’t have a ruling on racial segregation. conditions as opposite-sex couples.” compelling interest to require them to Robbie Kaplan, a New York attorney “This resolved the issue nationwide,” comply with a generally applicable law. who represents the Campaign for wrote Reeves, who subsequently issued The provisions in H.B. 1523 about Southern Equality, the plaintiff in the a Permanent Injunction in response to an bathroom use and marriage licenses Mississippi case, had filed a motion order from the 5th Circuit (see 791 F.3d threatened to have more significant seeking to reopen the marriage case 625) directing him to “act expeditiously practical effect, setting up a clash with in order to ensure that same-sex on remand and enter final judgment.” federal constitutional and statutory couples in the state are not subjected to Reeves’ July 2015 Permanent Injunction requirements. Over the past few months, unconstitutional discrimination because ordered that the state “and all its agents, issue has been joined in several lawsuits of H.B. 1523. A large team of pro-bono officers, employees, and subsidiaries, in other federal districts contesting attorneys from Paul, Weiss, Rifkind, and the Circuit Clerk of Hinds County whether federal sex discrimination laws Wharton & Garrison, a New York firm and all her agents, officers, and override state laws and require employers where Kaplan is a partner, is working on employees, are permanently enjoined not to discriminate against LGBT the case, together with attorneys from from enforcing Section 263A of the people or to deny bathroom access to several southern states, including local Mississippi Constitution and Mississippi transgender employees and students. As counsel from Mississippi. Code Section 93-1-1(2).” Judge Reeves pointed out in his June 27 Reeves is also presiding in two Shortly after Reeves issued his Order, states “lack authority to nullify other lawsuits involving challenges injunction, the Mississippi Attorney a federal right or cause of action they and defenses to the constitutionality of General’s office advised all 82 Circuit believe is inconsistent with their local other provisions of H.B. 1523, which Court clerks to grant marriage licenses policies.” In this case, the marriage was explicitly enacted in response to the “to same-sex couples on the same terms license provision clearly violates federal Supreme Court’s Obergefell v. Hodges and conditions accorded to couples of constitutional requirements established decision and which shelters public the opposite sex.” But in response to this in the Obergefell decision. employees and private businesses from motion, the State argued that the only “In H.B. 1523,” wrote Reeves, “the any liability or adverse consequences Circuit Court Clerk bound by the court’s State is permitting the differential if they refuse to deal with same-sex injunction was the Hinds County Clerk, treatment to be carried out by individual couples based on their religious beliefs. who was named in that Order, because clerks. A statewide policy has been The law also allows government offices the clerks are county employees rather ‘pushed down’ to an individual-level and businesses to deny transgender than state employees. policy. But the alleged constitutional people appropriate access to restrooms When the Mississippi legislature infirmity is the same. The question and other gender-designated facilities, convened for its 2016 session, it promptly remains whether the Fourteenth once again based on a “sincere religious passed H.B. 1523, which was clearly Amendment requires marriage licenses belief” that a person’s gender is intended to send a message that the to be granted (and out-of-state marriage immutably determined at birth. state would happily tolerate and protect licenses to be recognized) to same- Judge Reeves, an African-American discrimination against same-sex couples sex couples on identical terms as they man who was appointed to the district and LGBT individuals by privileging are to opposite-sex couples.” And the court by President Barack Obama, those with anti-gay religious beliefs. precise question before Reeves was presided over the Mississippi marriage This was largely symbolic when it came whether it was necessary to modify his equality case, Campaign for Southern to discrimination by private businesses 2015 injunction to make it clear that all Equality v. Bryant, issuing a ruling and landlords, since Mississippi law did government employees involved in the in November 2014 that the state’s not then forbid discrimination because marriage process, including the State constitutional and statutory bans on of sexual orientation or gender identity Registrar and the Circuit Court Clerks, same-sex marriage violate the 14th in employment, housing and public are bound by his injunction. Amendment. He issued a preliminary accommodations. It was only after H.B. Reeves concluded that the Registrar injunction to that effect on November 1523 was enacted that the city of Jackson was clearly bound, but that it would be 25, which was stayed while the state became the first jurisdiction in the state preferable to make it more explicit that appealed to the 5th Circuit, which, to legislate against such discrimination. the Circuit Court Clerks are bound as after hearing oral argument in this and Thus, at the time H.B. 1523 was passed, well, since a violation of the injunction

266 LGBT Law Notes Summer 2016 would subject them to potential liability, of an official state policy” because the entire bill, not just the clerk recusal including the costs of defending lawsuits the state is “the real party in interest” position at issue in the June 27 Order. against them and possible contempt even though the lawsuit was brought Unlike the earlier ruling, the June penalties if they refused to obey the against named state officials. Reeves 30 Order treated H.B. 1523 as broadly court’s Order. signaled that the amended form of the unconstitutional on its face. At the heart Much of Judge Reeves’ June 27 Order Injunction would add language from of H.B. 1523 is its Section 2, which was devoted to technical procedural and the Obergefell decision to make clear spells out three “sincerely held religious jurisdictional issues, which he resolved that same-sex couples are entitled to the beliefs or moral convictions” that are in every instance against the state same treatment as different-sex couples entitled, as found by Judge Reeves, to defendants, from Governor Phil Bryant because, as the 5th Circuit said last July, “special legal protection.” These are “(a) on down. Obergefell “is the law of the land and, Marriage is or should be recognized as He also agreed with the plaintiffs consequently, the law of this circuit.” the union of one man and one woman; that they should be able to conduct “Mississippi’s elected officials may (b) Sexual relations are properly discovery against the State Registrar disagree with Obergefell, of course, reserved to such a marriage; and (c) in order to learn which Clerks had filed and may express that disagreement Male (man) or female (woman) refer to forms seeking to recuse themselves as they see fit – by advocating for a an individual’s immutable biological sex from issuing marriage licenses. The constitutional amendment to overturn as objectively determined by anatomy Registrar, who is supposed to receive the decision, for example,” wrote and genetics at birth.” According to the those forms under H.B. 1523, had been Reeves. “But the marriage license issue statute, any person or entity that holds claiming that since she was not a party will not be adjudicated anew after every one or more of these beliefs is entitled to the marriage lawsuit, she was not legislative session. And the judiciary to be free from any sanction by the bound by the court’s injunction and will remain vigilant whenever a named government for acting upon them by, thus not subject to a discovery demand in this case. Reeves asserted that “there are good reasons to permit discovery from the Registrar strictly for purposes Reeves, who ruled in 2014 that Mississippi’s ban of enforcing the Permanent Injunction. In 2016, Mississippi responded to on same-sex marriage was unconstitutional, Obergefell by creating a new way to agreed with the plaintiffs as to all of their treat same-sex couples differently than opposite-sex couples. That the arguments. differential treatment is now pushed down to county employees should be irrelevant for discovery purposes. The State will have the documents that party to an injunction is accused of for example, denying restroom access show exactly where and by whom the circumventing that injunction, directly to a transgender person or refusing to differential treatment it authorized in or indirectly.” provide goods or services to a same-sex HB 1523 will now occur. The Plaintiffs Just minutes before H.B. 1523 was couple for their wedding. should be able to receive that post- scheduled to go into effect on July 1, The state may not override federal judgment discovery from an appropriate Judge Reeves filed a 60-page opinion rights and protections, and the plaintiffs State employee, like the Registrar.” explaining why he was granting a argued in these cases that by privileging Reeves rejected the technical preliminary injunction to the plaintiffs people whose religious beliefs contradict argument that the State, as such, was in two other cases challenging the the federal constitutional and statutory not a party to the lawsuit. For technical measure, which he consolidated for this rights of LGBT people, the state of reasons of constitutional law, the State purpose under the name of Barber v. Mississippi had violated its obligation as an entity can’t be sued in federal Bryant, 2016 U.S. Dist. LEXIS 86120, under the 1st Amendment to preserve court by its citizens without its consent, 2016 WL 3562647 (S.D. Miss., June 30, strict neutrality concerning religion and so state officials rather than the State 2016). According to this June 30 Order, its obligation under the 14th amendment itself are designated as defendants H.B. 1523 likely violates both the 1st to afford “equal protection of the law” in cases like the marriage equality Amendment’s Establishment of Religion to LGBT people. Reeves, who ruled in lawsuit. But this is really a technicality. Clause and the 14th Amendment’s Equal 2014 that Mississippi’s ban on same-sex The Attorney General defended the Protection Clause. Reeves’ lengthy, marriage was unconstitutional, agreed marriage ban using state funds and scholarly opinion expanded upon some with the plaintiffs as to all of their employees and, Reeves pointed out, of the points he made just days earlier, arguments. For purposes of granting a it is well established that a federal but this opinion was necessarily more preliminary injunction, he did not have court “may enjoin the implementation expansive because it was addressed to to reach an ultimate decision on the

Summer 2016 LGBT Law Notes 267 merits of the plaintiffs’ claims. It would On June 27, Judge Reeves had from Government Discrimination Act.” suffice to show that they were “likely” alluded to Mississippi’s resistance to Reeves pointed out what was really to prevail on the merits. But anybody the Supreme Court’s racial integration going on. “The title, text, and history reading Reeves’ strongly-worded opinion rulings from the 1950s and 1960s, of H.B. 1523 indicate that the bill was would have little doubt about his view and he did so at greater length in the the State’s attempt to put LGBT citizens of the merits. June 30 opinion, focusing on how H.B. back in their place after Obergefell,” he In an introductory portion of this 1523 was specifically intended by the wrote. “The majority of Mississippians opinion, he spelled out his conclusions legislature as a response to the Supreme were granted special rights to not serve succinctly: “The Establishment Clause Court’s ruling in Obergefell v. Hodges. LGBT citizens, and were immunized is violated because persons who Mississippi legislators made clear from the consequences of their actions. hold contrary religious beliefs are during the consideration of this bill that LGBT Mississippians, in turn, were unprotected – the State has put its its intention was to allow government ‘put in a solitary class with respect to thumb on the scale to favor some officials and private businesses to transactions and relations in both the religious beliefs over others. Showing discriminate against LGBT people private and governmental spheres’ to such favor tells ‘nonadherents that they without suffering any adverse symbolize their second-class status.” are outsiders, not full members of the consequences, just as the state had earlier (The quotation is from Romer v. Evans.) political community, and adherents sought to empower white citizens of “As in Romer, Windsor, and Obergefell,” that they are insiders, favored members Mississippi to preserve their segregated Reeves continued, “this ‘status-based of the political community,’” quoting way of life despite the Supreme Court’s enactment’ deprived LGBT citizens of from a Supreme Court decision from rejection of race discrimination under equal treatment and equal dignity under 2000, Santa Fe Independent School the 14th Amendment. the law.” District v. Doe, 530 U.S. 290. “And the Reeves quoted comments by Because state law in Mississippi Equal Protection Clause is violated by Governor Bryant criticizing Obergefell does not expressly forbid discrimination H.B. 1523’s authorization of arbitrary as having “usurped” the state’s “right because of sexual orientation or gender discrimination against lesbian, gay, to self-governance” and mandating the identity, the state tried to claim that transgender, and unmarried persons.” state to comply with “federal marriage in fact the bill did not have the effect Much of the opinion was devoted to standards – standards that are out of step of imposing any new harm. However, rejecting the state’s arguments that the with the wishes of many in the United subsequently the city of Jackson plaintiffs did not have standing to bring States and that are certainly out of step passed an ordinance forbidding such the lawsuits, that the defendants were with the majority of Mississippians.” discrimination, and the University of not liable to suit on these claims, and In a footnote, Reeves observed, “The Southern Mississippi also has a non- that injunctive relief was unnecessary Governor’s remarks sounded familiar. discrimination policy in place. “H.B. because nobody had been injured In the mid-1950s, Governor J.P. 1523 would have a chilling effect on by the law. Reeves cut through these Coleman said that Brown v. Board of Jacksonians and members of the USM arguments with ease. A major Supreme Education ‘represents an unwarranted community who seek the protection Court precedent backing up his decision invasion of the rights and powers of of their anti-discrimination policies,” on these points is Romer v. Evans, the the states.’” Furthermore, “In 1962, wrote Reeves. “If H.B. 1523 goes into 1996 case in which LGBT rights groups before a joint session of the Mississippi effect, neither the City of Jackson nor won a preliminary injunction against Legislature – and to a ‘hero’s reception’ USM could discipline or take adverse Colorado government officials to prevent – Governor Ross Barnett was lauded action against anyone who violated their Amendment 2 from going into effect. for invoking states’ rights during the policies on the basis of a ‘Section 2’ Amendment 2 was a ballot initiative battle to integrate the University of belief.” passed by Colorado voters in 1992 that Mississippi.” Reeves also noted how The court held that because of the prevented the state from providing any the racial segregationists in the earlier Establishment Clause part of the case, protection against discrimination for period had invoked religious beliefs as H.B. 1523 was subject to strict scrutiny gay people. The state courts found that a basis for refusing to comply with the judicial review, and also pointed the LGBT rights groups could challenge Supreme Court’s decisions. out that under Romer v. Evans, anti- its constitutionality, and it never did go Turning to the merits, Reeves LGBT discrimination by the state is into effect, because the Supreme Court addressed the state’s argument that the unconstitutional unless there is some ultimately found that it violated the purpose of the statute was to “address rational justification for it. He rejected Equal Protection Clause. Judge Reeves the denigration and disfavor religious the state’s argument that it had a ended his introductory section with a persons felt in the wake of Obergefell,” compelling interest to confer special quote from Romer: “It is not within our and the legislative sponsors presented rights upon religious objectors. “Under constitutional tradition to enact laws of it as such, as reflected in the bill’s title: the guise of providing additional this sort.” “Protecting Freedom of Conscience protection for religious exercise,” he

268 LGBT Law Notes Summer 2016 wrote, H.B. 1523 “creates a vehicle for Federal Trial Courts Divided Over Title state-sanctioned discrimination on the basis of sexual orientation and gender VII Sexual Orientation Discrimination identity. It is not rationally related to a legitimate end.” Indeed, he asserted, Claims “The deprivation of equal protection of the laws is H.B. 1523’s very essence.” ast July, the Equal Employment historical accounts suggest that Smith’s Reeves found that the standard for Opportunity Commission (EEOC), strategy was to make the bill more ordering preliminary relief had been Lreversing its position dating back controversial, thus ensuring its defeat. met. Not only was it likely that H.B. fifty years, issued a ruling that a gay man More recent accounts have suggested 1523 would be found unconstitutional could charge a federal agency employer that Smith, although a racist, was with sex discrimination, in violation of actually a supporter of equal rights for in an ultimate merits ruling, but it was Title VII of the Civil Rights Act of 1964, women and genuinely believed that sex clear that it imposed irreparable harm for denying him a promotion because discrimination in the workplace should on LGBT citizens, that a balancing of of his sexual orientation. Baldwin be banned. (His amendment did not add harms favored the plaintiffs over the v. Foxx, 2015 WL 4397641 (EEOC “sex” to the titles of the bill addressing defendants, and that the public interest 2015), is an administrative ruling, not other kinds of discrimination.) The would be served by enjoining operation binding on federal courts, and federal amendment passed, and ultimately the of H.B. 1523 while the lawsuits trial judges are sharply divided on the bill was enacted, going into effect in continue. “The State argues that the issue. During May and June, federal July 1965. public interest is served by enforcing district judges in Virginia, New York, Because “sex” was added through a its democratically adopted laws,” he Illinois, Mississippi, Connecticut, House floor amendment, the Committee wrote. “The government certainly has a Indiana, and Florida issued rulings Report on the bill says nothing about it, powerful interest in enforcing its laws. in response to employers’ motions and the subsequent debate in the Senate That interest, though, yields when a particular law violates the Constitution. In such situations the public interest is not disserved by an injunction preventing Federal trial judges in seven states issued its implementation.” Reeves concluded, “Religious freedom was one of the rultings on the matter in May and June. building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But to dismiss Title VII claims of sexual (where the bill went directly to the floor, H.B. 1523 does not honor that tradition orientation discrimination. In each case, bypassing committee consideration) of religious freedom, nor does it respect the employer argued that the plaintiff’s devoted little attention to it, apart from the equal dignity of all of Mississippi’s Title VII claim had to be dismissed an amendment providing that pay citizens. It must be enjoined.” as a matter of law because the federal practices “authorized” by the Equal Pay In his motion to the 5th Circuit to employment discrimination statute Act of 1963 (which bans paying men stay the June 23 and June 30 injunctions, does not forbid sexual orientation and women at different rates for the discrimination. performance of “equal work”) would Governor Bryant argued, as detailed Title VII was enacted as part of the not be outlawed by Title VII. As a above, that Reeves erred on every one Civil Rights Act of 1964. Although the result, the “legislative history” of Title of his findings, and contended that House committee considering the bill VII provides no explanation about what Reeves’ Establishment Clause rulings took evidence about sex discrimination, Congress intended by including “sex” as would place in question numerous it decided to send the bill to the House a prohibited ground of discrimination. federal and statute statutes authorizing floor without including “sex” as a During the first quarter century of religious exemptions from compliance prohibited basis for discrimination, Title VII, the EEOC and the federal with general laws. He also argued that because this was deemed too courts consistently rejected claims that the correct standard of review for the controversial and might sink the bill. the law outlawed sexual orientation constitutionality of H.B. 1523 was During the floor debate, however, discrimination. In the absence of rationality review, not heightened or a southern representative, Howard explanatory legislative history, they strict scrutiny, and that the measure Smith of Virginia, a conservative ruled that Congress must have intended easily passed the rationality test because Democrat who was opposed to the simply to prohibit discrimination so many religious exemption statutes proposed ban on race discrimination, against women because they are women have been upheld against challenge by proposed an amendment to add “sex” or against men because they are men, the courts. ■ to the list of prohibited grounds. Most and nothing more complicated or

Summer 2016 LGBT Law Notes 269 nuanced than that. This interpretation which their rulings could be appealed might recognize in a Title VII claim was challenged in 1989, when the had previously ruled adversely on the brought by a gay man. “Here, construing Supreme Court ruled in Price issue. In other circuits, however, the plaintiff’s complaint liberally,” wrote Waterhouse v. Hopkins, 490 U.S. 228, question is open and some judges have Judge Meyer, “he has alleged that his that a woman who failed to conform taken the EEOC’s lead. employer decided to discipline and fire to her employer’s sex stereotypes On May 5, U.S. District Judge Robert him as a result of learning that he was could bring a sex discrimination case E. Payne in Virginia found that he was in a long-term relationship with another under Title VII, adopting a broader bound by 4th Circuit precedent to reject man. On the facts alleged, there is ‘no and more sophisticated view of sex a sexual orientation discrimination basis to surmise that [plaintiff] behaved discrimination. Since 1989, some claim under Title VII in Hinton v. in a stereotypically feminine manner lower federal courts have used the Virginia Union University, 2016 WL and that the harassment he endured was, Price Waterhouse ruling to allow gay 2621967, 2016 U.S. Dist. LEXIS 60487 in fact, based on his non-conformity or transgender plaintiffs to assert sex (E.D. Va.), even though the plaintiff, with gender norms instead of his sexual discrimination claims in reliance on the an openly-gay administrative assistant orientation,’” quoting from another 2nd sex stereotype theory, while others have at the university, had alleged clear Circuit case, Simonton v. Runyon. Judge rejected attempt to “bootstrap” sexual evidence of anti-gay discrimination by Meyer granted the motion to dismiss orientation or gender identity into the university president. Judge Payne the Title VII sex discrimination claim Title VII in this way. More recently, found that a 1996 decision by the 4th “without prejudice to plaintiff’s filing several federal appeals courts have Circuit, Wrightson v. Pizza Hut of an amended complaint within 14 days endorsed the idea that gender identity America, 99 F.3d 138, was still binding. from the date of this ruling that re-pleads discrimination claims are really sex Payne noted that other federal trial the claim if such facts actually exist and discrimination claims, and a consensus courts were divided about whether to are alleged that would warrant a claim to that effect has begun to emerge, but defer to the Baldwin ruling, but in any of gender-based sex discrimination.” progress has been slower on the sexual event he felt bound by circuit precedent Judge Meyer never mentioned Baldwin orientation front. to dismiss the claim. or the alternative argument, which some Last summer the EEOC’s decision A district judge on Long Island, other district judges have accepted, that in Baldwin v. Foxx presented a Sandra J. Feuerstein, reached a similar a man having a long-term relationship startling turnabout of the agency’s result in Magnusson v. County of with another man can be considered view. The EEOC does not adjudicate Suffolk, 2016 WL 2889002, 2016 U.S. sufficient to state a gender stereotype discrimination claims against non- Dist. LEXIS 64897 (E.D.N.Y., May 17, claim, which is part of the EEOC’s governmental and state employers, 2016), dismissing a Title VII claim by underlying reasoning in Baldwin v. but it is assigned an appellate role an openly-lesbian custodial worker Foxx. Plaintiff Gary Pelletier had also concerning discrimination claims by at the Suffolk County Department of filed a sexual orientation complaint federal employees. In Baldwin v. Foxx, Public Works, who alleged that her with the Connecticut Commission on the EEOC reversed a ruling by the failure to comply with her supervisors’ Human Rights and Opportunities, but Transportation Department that a gay stereotypes of how women should he did not assert a supplementary state air traffic controller could not bring dress had led to discrimination against law claim in his Title VII lawsuit, and a sexual orientation discrimination her. Relying on prior decisions by the in any event there were no allegations claim under Title VII. Looking at the 2nd Circuit Court of Appeals, such as that he had exhausted his administrative developing federal case law since Price Dawson v. Bumble & Bumble, 398 F.3d remedies under Connecticut law. His Waterhouse and seizing upon a handful 211 (2nd Cir. 2005), Judge Feuerstein complaint was filed pro se, but he was of federal district court decisions that refrained from discussing more recent represented by counsel at the hearing on had allowed gay plaintiffs to bring developments and dismissed the claim, the motion, which may partly explain sex discrimination claims under a asserting that the plaintiff’s “claims why Judge Meyer is willing to entertain sex stereotype theory, the agency regarding incidents of harassment a new complaint. The case also raises concluded that a sexual orientation based on her sexual orientation do not a claim under the Age Discrimination discrimination claim is “necessarily” a give rise to Title VII liability.” in Employment Act, which was not sex discrimination claim and should be Also relying on Dawson, U.S. dismissed. (Imagine a supervisor allowed under Title VII. District Judge Jeffrey Alker Meyer telling somebody prior to his discharge Since that July 15 ruling, many (D. Conn.) dismissed a Title VII sex that “they could get younger people to federal district judges have had to rule discrimination in Pelletier v. Purdue take your job.”) on motions by employers to dismiss Title Pharma LP, 2016 U.S. Dist. LEXIS On May 31, a senior district judge VII sexual orientation discrimination 84099, 2016 WL 3620710 (June 29, in Illinois decided that prudence claims. The precedential hierarchy of 2016), holding that the gay male in light of the developing situation the federal court system has required plaintiff had failed to alleged facts counseled against dismissing a pending some of them to dismiss those claims sufficient to fit within the narrow sex “perceived sexual orientation” claim because the circuit court of appeals to stereotyping theory that the 2nd Circuit in the case of Matavka v. Board of

270 LGBT Law Notes Summer 2016 Education, 2016 U.S. Dist. LEXIS review before the start of the Court’s is whether the factual allegations in 70451 (N.D. Ill.). Judge Milton I. October term. The panel that heard Mr. Somers’ complaint set forth a Title Shadur confronted the school district’s the Hively argument had not ruled in VII claim based on his sex that is both motion to dismiss a discrimination more than eight months, suggesting that plausible on its face and gives Express claim by an employee at J. Sterling an extended internal discussion may sufficient notice of the nature of Mr. Morton High School, who alleged that be happening among the nine active Somers’ claims.” The judge concluded “he experienced severe harassment judges of the 7th Circuit, to whom the that this standard had been met, and from his coworkers and supervisors, panel’s proposed opinion would be that the employer’s argument “ignores including taunts that he was ‘gay’ and circulated before it is released. Panels the federal notice pleading standard.” should ‘suck it,’ frequent jokes about his may not depart from circuit precedent, Since the court found that Somers perceived homosexuality, and hacking but a majority of the active judges had pleaded “plausible claims for of his Facebook account to identify on the circuit can overrule their past harassment and constructive discharge him publicly as ‘interested in boys and decisions. A 7th Circuit ruling reversing based on his sex,” the motion to dismiss men’, and an email stating ‘U . . . are the district court’s dismissal of the must be denied. In Oncale, the Supreme homosexual.’” Judge Shadur observed Hively complaint would be a major Court said that one way a plaintiff could that the Chicago-based 7th Circuit breakthrough for Title VII coverage of prove a same-sex harassment claim Court of Appeals had in the past rejected sexual orientation claims. would be to show that the harasser sexual orientation discrimination In an Indiana case that could be was homosexual. In a footnote, Judge claims under Title VII, which “would affected by a ruling in Hively while it Stinson wrote: “To the extent that appear to bury” Matavka’s Title VII is pending, Somers v. Express Scripts Mr. Somers suggests in his response claim. But, he noted, Baldwin v. Foxx, Holdings, 2016 WL 3541544, 2016 brief that the employee who allegedly while not binding on the court, may U.S. Dist. LEXIS 84268 (S.D. Ind., harassed him may be a homosexual, the prompt a rethinking of this issue, and June 29, 2016), the plaintiff, who may Court will not accept that as true at this that the 7th Circuit heard oral argument or may not be gay, avoided dismissal of stage of the litigation because it is not on September 30 of a plaintiff’s appeal his Title VII sex discrimination claim alleged in his complaint.” from a different federal trial judge’s by taking care never to mention sexual Meanwhile, two other decisions dismissal of a sexual orientation orientation in his sexual harassment issued in June have taken opposite discrimination claim in the case of complaint, hoping to bring his case views on the question. In Brown v. Hively v. Ivy Tech Community College, within the Supreme Court’s same-sex Subway Sandwich Shop of Laurel, 2016 2015 U.S. Dist. LEXIS 25813, 2015 harassment precedent of Oncale v. WL 3248457, 2016 U.S. Dist. LEXIS WL 926015 (N.D. Ind., March 3, 2015). Sundowner Offshore Services, Inc., 523 76526 (S.D. Miss., June 13, 2016), U.S. “Should Hively follow recent district U.S. 75 (1998). Brian Somers alleged District Judge Keith Starrett bowed court decisions in finding Baldwin that harassing co-workers called him to prior 5th Circuit rulings, such as persuasive,” he wrote, “that finding “fat motherfucker,” “faggot,” “gay,” and Brandon v. Sage Corp., 808 F.3d 266 plainly would affect the disposition of “prison bitch,” and that one said that (2015), rejecting sexual orientation Morton High’s motion. That being so, Somers “had a soft ass and he would claims under Title VII, and he even the prudent course at present is to stay like to poke it.” Somers asserted that claimed, somewhat disingenuously, that this matter pending the issuance of a when he complained to a supervisor, he the Baldwin decision did not support the decision in Hively.” The 7th Circuit had was told to “get over it” and no action plaintiff’s claim, stating that Baldwin not issued a decision in Hively as of this was taken. The employer argued that “takes no position on the merits of the writing. Judge Shadur stayed a ruling Title VII did not govern the claim, claim and resolves only timeliness and on the motion until July 29, and said because it was clearly – in the eyes of jurisdictional issues.” While this may that if the 7th Circuit had not issued a the employer – a sexual orientation appear to be technically true, since the ruling by then, he might stay it further. discrimination claim not covered by EEOC was ruling on an appeal from the The EEOC filed an amicus brief in Title VII. While acknowledging 7th Transportation Department’s dismissal Hively, urging the Circuit to adopt a Circuit precedent holding that sexual of the claim and not ultimately on the new precedent consistent with Baldwin. orientation claims may not be brought merits, on the other hand the EEOC The federal appeals courts are not under Title VII, District Judge Jane definitely did take a “position” on the bound by any rules about how soon Magnus-Stinson notes that Somers is question whether sexual orientation after oral argument they must issue not explicitly alleging sexual orientation discrimination claims are covered by opinions. Sometimes the 7th Circuit discrimination and comments, “Express’ Title VII; it had to address this question moves quickly. During 2014 it took just a assumption that Mr. Somers’ claims in order to determine that it had week after the August 26 oral argument must be based on sexual orientation jurisdiction over the claim. The EEOC to rule affirmatively on a marriage assumes a key fact that is not alleged clearly stated in Baldwin that sexual equality case on September 4, giving in Mr. Somers’ complaint – namely, orientation discrimination claims the states of Wisconsin and Indiana his sexual orientation. Instead, the only are “necessarily” sex discrimination time to petition the Supreme Court for question before the Court at this time claims.

Summer 2016 LGBT Law Notes 271 By contrast, U.S. District Judge Ironically, Judge Walker turned to of the merits of allowing sexual Mark E. Walker of the Northern an opinion written by the late Justice orientation discrimination claims District of Florida, finding that the 11th Antonin Scalia, an outspoken opponent under Title VII, but it will not be the Circuit Court of Appeals has not issued of LGBT rights, to seal the deal. He last word, as the EEOC pushes forward a precedential ruling on the question, quoted from Scalia’s opinion for the with its affirmative agenda to litigate refused to dismiss a “perceived sexual Supreme Court in Oncale v. Sundowner this issue in as many federal courts orientation” discrimination claim in Offshore Services, 523 U.S. 75, a 1998 around the country as possible, building Winstead v. Lafayette County Board decision that same-sex harassment to a potential Supreme Court ruling. So of County Commissioners, 2016 U.S. cases could be brought under Title VII. far, the Supreme Court has refused to Dist. LEXIS 80036, 2016 WL 3440601, “No one doubts,” wrote Judge Walker, get involved with the ongoing debate on June 20. Pointing out that the 11th “that discrimination against people about whether sexual orientation or Circuit had ruled in 2011 in Glenn v. based on their sexual orientation was gender identity discrimination claims Brumby, 663 F.3d 1312, that a gender not ‘the principal evil Congress was are covered under Title VII. It refused identity discrimination claim could be concerned with when it enacted Title to review the 11th Circuit’s decision considered a sex discrimination claim VII,’” quoting Scalia, and continuing in Glenn v. Brumby, for example, under the Equal Protection Clause the quote, “‘But statutory prohibitions presumably because of the absence of using a sex stereotyping theory, Judge often go beyond the principal evil to a circuit split, as Glenn is so far the Walker found that the Baldwin ruling, cover reasonably comparable evils, only case holding that gender identity which also discussed sex stereotyping and it is ultimately the provisions discrimination claims should be dealt as a basis for a sexual orientation claim, of our laws rather than the principal with as sex discrimination claims under was persuasive and should be followed. concerns of our legislators by which the Equal Protection Clause. But the Judge Walker rejected the argument we are governed.’” Scalia was opposed Court can’t put things off much longer. made by some courts that using the to relying on “legislative history” to An affirmative 7th Circuit ruling in stereotyping theory for this purpose was determine the meaning of statutes, Hively would create the kind of “circuit inappropriately “bootstrapping” claims instead insisting on focusing on the split” that usually prompts the Supreme of sexual orientation discrimination statutory language and giving words Court to agree to review a case. That under Title VII. “These arguments their “usual” meanings. may not be long in coming. seem to this Court to misapprehend the Judge Walker concluded that his Although the 7th Circuit is likely to nature of animus towards people based decision not to dismiss the Title be the first to rule on this, an appeal on their sexual orientation, actual or VII claim “does not require judicial is also pending in the 2nd Circuit from perceived,” he wrote. “Such animus, activism or tortured statutory a March 9, 2016, district court ruling whatever its origin, is at its core based construction. It requires close attention in Christiansen v. Omnicom Group, on disapproval of certain behaviors to the text of Title VII, common Inc., 2016 WL 951581 (S.D.N.Y.), in (real or assumed) and tendencies sense, and an understanding that ‘in which the district judge also dismissed towards behaviors, and those behaviors forbidding employers to discrimination a gay plaintiff’s Title VII claim, are disapproved of precisely because against individuals because of their relying on 2nd Circuit precedents. they are deemed to be ‘inappropriate’ sex, Congress intended to strike at the On June 28, the deadline for amicus for members of a certain sex or gender.” entire spectrum of disparate treatment filings, both the EEOC and a group of He concluded: “This view – that of men and women resulting from sex 128 members of Congress filed briefs discrimination on the basis of stereotypes,’” a quotation from Sprogis urging the 2nd Circuit to abandon its sexual orientation is necessarily v. United Air Lines, 444 F.2d 1198 (7th past decisions and embrace the broader discrimination based on gender or Cir. 1971), which had been quoted by understanding of sex discrimination sex stereotypes, and is therefore sex the Supreme Court in Manhart, an that the EEOC described in its Baldwin discrimination – is persuasive to this important early sex discrimination case decision. The congressional brief Court, as it has been to numerous under Title VII that rejected the use of argued that the history of repeated other courts and the EEOC.” He also sex-based actuarial tables to require unsuccessful introductions of bills to contended that it “follows naturally women to make larger contributions adopt an express federal ban on sexual from (though it is not compelled by) for pension coverage than men because orientation discrimination should not Brumby, which is binding Eleventh they live longer on average. be construed as a belief by Congress Circuit precedent. Simply put, to treat Judge Walker rejected an alternative that Title VII does not already cover someone differently based on her analysis proffered by the EEOC in this form of discrimination. Instead, attraction to women is necessary to Baldwin, however, observing that it the brief argues, particularly with treat that person differently because would not support coverage for sex respect to the Equality Act introduced of her failure to conform to gender discrimination claims by bisexual last year, the purpose of the bill is to or sex stereotypes, which is, in turn, plaintiffs! “clarify” and make “explicit” what is necessarily discrimination on the Judge Walker’s decision provides the already implicitly covered in the ban basis of sex.” most extended district court discussion on sex discrimination. ■

272 LGBT Law Notes Summer 2016 Restrictive Definition of Employment Presents a Challenge to Discrimination Claimants

n a 2-1 decision, the U.S. Court of operated her own cleaning company agencies. The Butler court concluded Appeals for the 4th Circuit affirmed that contracted with Harris for 14 years, that the plaintiff had established an Ithe decision of the District Court until Pierce terminated her contract employment relationship necessary to for the District of Maryland, which supposedly for budgetary reasons sustain her Title VII claim by showing dismissed Karen Greene’s complaint in March 2010. Greene’s complaint that: (1) she worked side-by-side against the Harris Corporation and its characterized her relationship with with workers solely employed by the employee, Harl Dan Pierce. Greene v. Pierce as “contemptuous.” Since he defendant-client; (2) she was directly Harris Corp., 2016 WL 3425579, 2016 began working at Harris in 2008, engaged in producing the client’s U.S. App. LEXIS 11316 (June 22, 2016). Pierce treated Greene in a rude manner product; and (3) she was supervised Greene alleged that Harris and Pierce: and made derogatory statements about by a manager employed by the client. (1) discriminated against her because her personal appearance to other Thus, showing these three of the nine of her sexual orientation and personal Harris employees. He also became factors was sufficient to establish an appearance in violation of Howard visibly upset after learning from a co- employment relationship in Butler. County, Maryland Code (HCC) § worker that she is a lesbian, just one The court came to a different 12.208; and (2) tortiously interfered or two months before he terminated conclusion when applying the nine- with her business relationship with Greene’s services. factor test in Greene, finding that Eurest Services, Inc., a cleaning Later that year in December, Greene Greene’s allegations failed to raise contractor that employed Greene and was employed by Eurest, Harris’s new sufficient facts showing an employment assigned her to work at Harris Corp. cleaning contractor, and assigned to relationship with Harris. In support Both claims were dismissed pursuant to return to Harris as a janitor. When of her claim, Greene alleged that Federal Rule of Civil Procedure 12(b) Pierce learned that Greene was working Harris contracted for various powers (6), with the Court notably concluding there, he promptly had a Har ris security typically retained by employers, that Greene’s discrimination claim officer escort her from the premises on including the rights to: (1) accept or failed to allege sufficient facts showing her first day. He then emailed Harris’ reject prospective janitors provided by that an employment relationship facilities manager, stating that Greene Eurest, and remove them from their existed between herself and Harris. was previously dismissed for charging assignments “for cause”; (2) assign an Circuit Judge Barbara Milano Keenan too much money, inappropriately on-site Harris employee to supervise wrote for the court. searching his office, and screaming Greene; (3) select which days Greene Howard County’s ordinance obscenities at him. Afterwards, he would work at the office; and (4) explicitly prohibits sexual orientation told Eurest that Greene was banned provide the cleaning supplies Greene discrimination by an “employer,” who from Harris and must be removed must use. However, the court instead is defined under HCC § 12.208(I)(a) immediately from working at the concluded that Harris’ authority to as a person engaged in an industry office. Eurest subsequently terminated accept or reject Eurest personnel or business who has at least five full- Greene’s employment, which it admits merely arose from the company’s time or part-time employees during a it would not have done but for Pierces right to ensure that its service contract specific time period. Section 12.208(I) statements (which Pierce ultimately was performed to its satisfaction. The (a) also defines an employee as an recanted in this case). court also rejected Greene’s assertion individual employed by an employer — By the time Greene appealed the because she failed to allege that: (1) her a definition that the court characterizes district court’s decision, the 4th Circuit duties were related to Harris’ business as circular. These definitions undermine was no stranger to the joint-employment product; (2) she performed work also the county’s attempt to protect doctrine or the challenges presented undertaken by Harris employees; LGBT workers from workplace by staffing agency-client contracts. (3) Eurest and Harris intended that discrimination. Plaintiffs, who work The Court had recently issued its their contract established any type under independent contracts, cannot decision in Butler v. Drive Automotive of employment relationship between easily establish that an employment Industries of America, Inc., 793 F.3d Eurest personnel and Harris; or (4) she relationship existed between themselves 404 (4th Cir. 2015), which concerned met with or received direction from and their respective defendants; like a Title VII discrimination claim. In any Harris supervisor in the few hours Greene, they therefore cannot state Butler, the court developed a nine- she worked there. discrimination claims that survive a factor test to identify joint employers dismissal motion. and prevent them from evading continued on page 327 In Greene’s case, she had previously liability by hiding behind staffing

Summer 2016 LGBT Law Notes 273 Federal Judge Orders Indiana to List Two Moms on Birth Certificates

.S. District Judge Tanya Walton even if the mother knows the identity of interest of creating a “true” record Pratt has ruled that Indiana the child’s biological father, and the birth of the child’s biological parents. The Uwas failing to comply with the certificate will list only the mother. If state argued that it was the duty of the Supreme Court’s mandate for marriage the answer is “yes,” the husband’s name married birth mother to advise hospital equality in Obergefell v. Hodges, will go into the database, and ultimately staff while completing the Worksheet if decided last June 26, when the state will be listed on the birth certificate. her child was conceived through donor refused to list the same-sex spouses of Even if the child of a married couple is sperm so that her husband’s name would birth mothers on their children’s birth conceived with donated sperm, there is be excluded from the database, but this certificates. Ruling on cases brought a presumption that the husband is the was clearly a spurious argument, since by several same-sex couples who were father, unless the mother takes steps the Worksheet does not prompt hospital married before their children were born, during this initial information-gathering staff members to ask this question. Judge Pratt found that the mandate to process to make clear that her husband “The State Defendant’s argument that afford equal marriage rights to same- is not the biological father. the birth mother should acknowledge sex couples included a requirement Even though all of the plaintiff that she is not married to the father of that the “parental presumption” applied couples in this case are married, the state her child when she has been artificially to husbands of women who give birth refused to accept same-sex spouses into inseminated or else she is committing should also be applied to their wives. the database or to list them on the birth fraud when she has been artificially Henderson v. Adams, 2016 U.S. Dist. certificate. The state’s position was that inseminated is not consistent with the LEXIS 84916, 2016 WL 3548645 (S.D. the database and the birth certificates Indiana Birth Worksheet, Indiana law, Ind., June 30, 2016). generated from it are supposed to create or common sense,” wrote Judge Pratt. Judge Pratt explained that the usual a true record of the biological parentage “The Indiana Birth Worksheet asks, procedure in Indiana for issuing birth of the child, and that because a same- ‘are you married to the father of your certificates starts when hospital staff sex spouse of a birth mother is not child,’ yet it does not define ‘father.’ “work with the birth mother to complete biologically related to the child, listing This term can mean different things to the State of Indiana’s ‘Certificate of Live her in the database and on the birth different women. Common sense says Birth Worksheet,’” which was created by certificate would create a false record. that an artificially-inseminated woman the state as part of its Birth Registration The state took the position that a same- married to a man who has joined in the System. “Staff at the hospital upload the sex spouse could only be listed in the decision for this method of conception, information provided on the Indiana database and the birth certificate if she and who intends to treat the child as his Birth Worksheet to a State database. The adopted the child with the permission own, would indicate that she is married county health department then receives of the birth mother, a process involving to the father of her child. Why would she notification that birth information expenses and delay, during which time indicate otherwise?” has been added to the database. A the child would have only one legal Judge Pratt pointed out that the notification letter to the birth mother parent. Worksheet, devised by the state, made is generated on a form provided by the Judge Pratt accepted the plaintiffs’ no attempt to elicit the information that State, which indicates that information argument that “Indiana’s refusal to the State deemed to be so important, has been received by the county health grant the status of parenthood to female and, furthermore, “there is no warning department and requests that the mother spouses of artificially-inseminated of fraud or criminal liability.” She notify the county health department birth mothers while granting the status pointed out that some other states had if there is an error with respect to the of parenthood to male spouses of enacted specific statutory language to child’s identifying information.” If the artificially-inseminated birth mother deal with the use of donor insemination mother wants a birth certificate, she violates the Equal Protection Clause,” by married couples and the issuance has to request one, which will then be because it was sex discrimination, pure of appropriate birth certificates, but generated out of the database. and simple. Indiana has failed to do so. She pointed One of the questions on the Furthermore, sex discrimination out, however, that in one such state, Worksheet is whether the birth mother requires heightened scrutiny, putting Wisconsin, litigation is pending because is married. If she answers “no,” she is the burden on the state to justify its that state has also been refusing to list asked whether a paternity affidavit has policy and show that it advances an same-sex spouses on birth certificates. been completed for the child, in which important state interest. Because the Ultimately, she pointed out, the case the person identified as the father state presumes, without proof, that Worksheet process as set up by the state will go into the database and be listed the husbands of birth mothers are the did not achieve its articulated purpose on the birth certificate. If there has been parents of their children, the policy does of creating a “true” record of biological no affidavit, then the space is left blank, not, in fact, advance the state’s asserted parents, and was administered in a

274 LGBT Law Notes Summer 2016 way that clearly discriminated against same-sex couples. Rejecting the state’s Maryland High Court Adopts De Facto argument that employing a parental Parent Standing for Lesbian Co-Parents presumption was not required under Obergefell’s mandate of equal marriage verruling a 2008 precedent and just compounds the difficulties of this benefits, she pointed out, “the state reversing lower court decisions already challenging inquiry.” Michelle created a benefit for married women Oin this case, the Court of Appeals and Brittany Conover’s relationship based on their marriage to a man, which of Maryland, that state’s highest court, began in July 2002. They decided allows them to name their husband on ruled on July 7 that the same-sex spouse together that Brittany would conceive their child’s birth certificate even when of a birth mother, who gave birth to a child with anonymous donor sperm the husband is not the biological father. their child shortly before they were obtained through Shady Grove Fertility Because of Baskin [the 7th Circuit’s married, has standing as a “de facto Clinic. She became pregnant in 2009, marriage equality ruling, which the parent” to pursue custody and visitation giving birth to their son in April 2010. Supreme Court declined to review] in the context of their present divorce The birth certificate listed only one and Obergefell, this benefit –which is proceeding even though she never parent: Brittany. The space for a father directly tied to marriage – must now be adopted the child. Conover v. Conover, was left blank. When their son was afforded to women married to women.” 2016 WL 3633062, 2016 Md. LEXIS about six months old they married in the In addition to finding an equal 433, reversing 224 Md. App. 366, 120 District of Columbia. Maryland at that protection violation, Judge Pratt found A.3d 874 (2015). The co-parent will not time recognized same-sex marriages a Due Process violation because in be required to show that the birth mother contracted in D.C. but did not issue Obergefell the Supreme Court referred to is unfit or that she can prove “exceptional marriage licenses to same-sex couples. both clauses of the 14th Amendment as a circumstances” justify departing from After a year of marriage the women source of the freedom to marry. Since the the general rule that unrelated “third separated. Brittany allowed Michelle Supreme Court identified that freedom parties” do not have standing to seek overnight and weekend access to their as a fundamental right, strict scrutiny custody of children. son until July 2012, when she prevented would apply, and the state’s rationale for The court found that the decision it further contact. Brittany filed a formal its position of this case was obviously overturned, Janice M. v. Margaret K., 404 divorce action in February 2013 in insufficient to meet the “compelling Md. 661 (2008), was based on a faulty the Circuit Court in Hagerstown. Her interest” test, and Judge Pratt so found. reading by the court of the Supreme divorce complaint stated that there were The judge concluded: “Given Indiana’s Court’s decision in Troxel v. Granville, no children of the marriage. Michelle long-articulated interest in doing what is 530 U.S. 57 (2000), that failed adequately filed an answer seeking visitation to perceive the narrow scope of that rights with their son, and subsequently in the best interest of the child and given ruling, and had also relied improperly on counter-complained for divorce, again that the Indiana Legislature has stated distinguishable earlier Maryland cases. requesting visitation rights (but not the purpose of Title 31 is to protect, Furthermore, the court characterized custody). Brittany opposed custody, promote, and preserve Indiana families, Janice M. as an “archaic” precedent arguing that Michelle was not related to there is no conceivable important that was out of step with the trend of the boy and thus lacked standing under governmental interest that would justify decisions in other states. (Ironically, on Maryland law. the different treatment for female July 5 the Court of Appeals of Michigan Michelle asked the court to interpret spouses of artificially-inseminated issued a ruling on the exact same issue Maryland’s statute governing custody birth mothers from the male spouses of taking the opposite position, see below.) disputes involving children “born to artificially-inseminated birth mothers. Judge Sally D. Adkins wrote the parents who have not participated in a As other district courts have noted, the court’s opinion, which had the support marriage ceremony with each other” holding of Obergefell will inevitably of four judges. There were concurring to place her in the same position as require ‘sweeping change’ by extending opinions by three judges suggesting a father. The statute allows a father in to same-sex married couples all benefits slightly different tests to establish “de such circumstances to assert parental afforded to opposite-sex married facto” parent status, but all ultimately rights if four tests are met: a judicial couples. Those benefits must logically ruling in favor of the co-parent’s right determination of paternity, the father’s and reasonably include the recognition as a “de facto” parent to seek custody acknowledgement in writing that he is sought by Plaintiffs in this action.” and/or visitation depending upon the the father, the father has “openly and Counsel for plaintiffs include Megan trial court’s determination of the best notoriously recognized the child to be L. Gehring, Richard A. Mann, PC, interest of the child. his child; or has subsequently married Raymond L. Faust, Skiles Detrude; “Child custody and visitation the mother and has acknowledged Richard A. Mann; William R. Groth, decisions are among the most serious himself, orally or in writing, to be the Fillenwarth Dennerline Groth & and complex decisions a court must father.” Michelle took the position Towe LLP; and Karen Celestino- make,” wrote Judge Adkins, “with that she satisfied at least three of these Horseman, Austin & Jones PC (all are grave implications for all parties. The tests, most pertinently the last, so she of Indianapolis). ■ dissolution of a non-traditional marriage should be deemed a parent. The lower

Summer 2016 LGBT Law Notes 275 courts determined, however, that all practical respects as a result of a dissonance between what is in the best Michelle lacked standing. Since the son relationship supported by the child’s interest of a child and a parent’s right to was conceived and born before they legal parent. (In a concurring opinion direct and govern the care, custody, and married, no presumption applied that in Conover, Judge Shirley Watts would control of their children.” Michelle, as the spouse of Brittany, was modify this test in cases where the child The court returned the case to the boy’s parent, and the court found has two known legal parents to require the Circuit Court “for determination that the statute Michelle was relying that the relationship of the third party of whether, applying the H.S.H.-K. upon could not be construed in gender- have been fostered with the consent standards, Michelle should be neutral terms. The courts also rejected of both of them; her reservations were considered a de facto parent, and conduct Michelle’s argument that she should be not essential to deciding this case, further proceedings consistent with this deemed a “de facto” parent, relying on because the son was conceived through opinion.” Thus, it will remain for the the precedent of Janice M. holding that anonymous donated sperm.) trial court both to determine Michelle’s Maryland did not recognize that doctrine. The Maryland Court of Appeals status and, if she is a de facto parent, The court granted the divorce but denied concluded that this de facto parent whether it is in the child’s best interest to Michelle’s request for visitation based doctrine should be adopted to determine order visitation. This determination will solely on lack of standing. Thus, the whether an unmarried partner of a birth naturally have to take into account the trial court never determined whether parent should be able to seek custody and/ fact that Brittany has not allowed contact ordering visitation would be in the best or visitation in the event of dissolution with the child, now age 6, since July in interest of the child. The intermediate of the adults’ relationship. Thus, the co- 2012, four years ago, so one anticipates appellate court affirmed, and the Court parent would not be obliged as a mere that the trial court will hear expert of Appeals granted Michelle’s petition third party to prove that the child’s legal testimony from both parties about the for certiorari. The court’s opinion parent is “unfit” or that “exceptional impact of reestablishing contact after answers affirmatively the first question circumstances” would justify invading this prolonged gap in the life of a very posed in Michelle’s petition: “Should her constitutional parental rights. In young child. Maryland reconsider Janice M. v. deciding whether to award visitation in Interestingly, Michelle Conover Margaret K. and recognize the doctrine this case, the court would be concerned now identifies as a transgender man of de facto parenthood?” with the best interest of the child once and transitioned after the divorce, but Ultimately the logic of the court’s the de facto parent status of Michelle the court indicated in a footnote that decision was derived from its conclusion was recognized. The court rejected “she explained that she would refer that “the primary goal of access Brittany’s argument that the legislature to herself using female pronouns and determinations in Maryland is to serve has the sole authority to make this her former name for consistency with the best interests of the child.” This change in Maryland law, pointing out the record and that her gender identity must be done while respecting the that the existing legal framework is is not material to any legal issue in constitutional right of a fit parent to have largely the result of judicial decision- this appeal.” The court agreed to this custody and to control the raising of her making, not legislation. arrangement, and Michelle’s current child, where it is claimed that a “non- “We overrule Janice M. because name appears nowhere in the opinion, parent” should be entitled to access to it is “clearly wrong” and has been but a press release by Free State Legal, the child. Courts in other states have undermined by the passage of time,” whose deputy director and managing used a variety of legal theories when wrote Judge Adkins, making clear attorney Jer Welter represents Michelle, confronted with unmarried same-sex that “de facto parents are distinct from identifies the appellant as “Michael couples terminating their relationships other third parties. We hold that de Conover.” One wonders whether or how and battling over access to the children facto parents have standing to contest the trial court will take this transition they were raising. One doctrine that has custody or visitation and need not into account in making the “best emerged and achieved wide acceptance show parental unfitness or exceptional interest” determination. If Brittany – the de facto parent doctrine – was circumstances before a trial court (who is no longer using Conover as her first adopted by the Wisconsin Supreme can apply a best interests of the child surname) remains strongly opposed to Court in In re Custody of H.S.H.-K., 533 analysis.” Judge Adkins described visitation, it would not be surprising N.W.2 419 (1995). This doctrine poses the best interest of the child as being if she sought to make this an issue in a four-part test: “the legal parent must “of transcendent importance,” and the best interest determination by the consent to and foster the relationship concluded, “With this holding we fortify Circuit Court. between the third party and the child; the best interests standard by allowing More than forty-five organizations the third party must have lived with judicial consideration of the benefits a collaborated on seven amicus briefs the child; the third party must perform child gains when there is consistency in that were filed in support of the parental functions for the child to a the child’s close, nurturing relationships. appellant before the Court of Appeals, significant degree; and most important, We do so carefully, adopting the including LGBT rights groups, a parent-child bond must be forged.” In multi-part test first articulated by the women’s rights groups, and a large other words, in order to be a de facto Wisconsin Supreme Court in H.S.H.-K. group of law professors specializing in parent, somebody must be a parent in This test accommodates, we think, the family law. ■

276 LGBT Law Notes Summer 2016 Michigan Appeals Court Rejects Lesbian Co-Parent Standing in Visitation Suit

panel of the Court of Appeals Obergefell v. Hodges.) Thus, the plaintiff crucial, and dispositive, requirement for of Michigan unanimously ruled was not legally related to the child or to the equitable-parent doctrine to apply Aon July 5 that Michelle Lake, the child’s mother at any time. – the child must be born in wedlock.” a lesbian co-parent, lacked standing The Family Court judge in She pointed out that Michigan courts to seek “parenting time” with the Washtenaw County, Darlene O’Brien, have consistently refused to extend this biological child of her former same- overruled the defendant’s objection to doctrine to heterosexual partners who sex partner, Kerri Putnam. Reversing the plaintiff’s standing and awarded have a child while living in unmarried a decision to award parenting time by parenting time to the plaintiff, but the cohabitation where the man is not the Washtenaw Circuit Court in Lake court of appeals granted the defendant the biological father of the child. In v. Putnam, 2016 Mich. App. LEXIS leave to appeal. other words, although the court did 1297, 2016 WL 3606081, the appeals The question, then, was whether not describe it as such, this equitable court held that the co-parent was a mere some legal doctrine recognized in –parent doctrine is similar to the “third party” who did not come within Michigan was available for her to assert “parental presumption” that other states the standing requirements of the state’s standing to seek visitation after the apply to determine a husband’s parental Child Custody Act. Judge Colleen A. women’s relationship ended. Courts in status when his wife gives birth, without O’Brien wrote the opinion for the panel, other states are divided on this question. requiring proof in every case that the with Judge Douglas B. Shapiro filing a The plaintiff pinned her hopes on the husband is the child’s biological father. concurring opinion. doctrine of “equitable-parent” that Responding to the plaintiff’s argument Judge Shapiro’s concurrence provides is recognized in Michigan. As Judge that refusing to extend this doctrine a more sympathetic version of the facts O’Brien describes Michigan’s version to give her standing discriminates than O’Brien’s. “While the parties disagree as to details,” he wrote, “it is undisputed that they lived together for about a decade as a same-sex couple, that about five years into the relationship The plaintiff pinned her hopes on the doctrine defendant bore a child by artificial insemination, that for several years the of “equitable-parent.” parties each acted as a parent to the child, and that they were both viewed as parents by the child. It is also undisputed that several years later, around of the doctrine, “a husband who is not because of her sexual orientation, the September 2014, defendant ended the the biological father of a child born court asserted that its failure to extend relationship, moved out with the child, or conceived during wedlock may, the doctrine to unmarried heterosexual and entered into a new relationship nevertheless, be considered that child’s couples refutes that argument. As to the with a different woman. Defendant natural father if three requirements are argument that the two women should be initially allowed plaintiff visitation with satisfied: (1) the husband and the child treated as if they were married because the child, but eventually she refused must mutually acknowledge their father- Michigan and Florida’s refusal to allow to do so. In June 2015, plaintiff filed child relationship, or the child’s mother same-sex marriage during the time this action seeking parenting time.” In must have cooperated in the development they were living together violated their addition, as Judge O’Brien pointed out of that father-child relationship prior to constitutional rights as proclaimed in in her opinion for the court, although the time that the divorce proceedings Obergefell v. Hodges, the court pointed the women could have married in other commenced; (2) the husband must out that plaintiff did not introduce any jurisdictions, they did not do so. Neither express a desire to have parental rights evidence suggesting that the women did the plaintiff adopt the child with to the child; and (3) the husband must would have married had that option the consent of the defendant, although be willing to accept the responsibility been available to them. After all, at that would have been possible when the of paying child support.” If these tests the time their child was born, they women were living with the child for are met, the husband would be deemed could have married in other states or some time in Florida, where the state an equitable parent with standing to Canada (just across the border from courts had invalidated a statutory ban on seek custody and/or visitation as part of Michigan), although their home states “homosexuals” adopting children. (At a divorce proceeding, the determining did not then recognize out-of-state the time, Michigan courts did not allow factor in that ruling being the best same-sex marriages. Another part of co-parent adoptions, which was one of interest of the child. Plaintiff asserted the Obergefell ruling, however, was that the issues in DeBoer v. Snyder, one of the that she met the tests. However, O’Brien states were obligated to recognize such cases that was ultimately consolidated in pointed out, the plaintiff “ignores one out-of-state marriages.

Summer 2016 LGBT Law Notes 277 As an alternative argument, the standing of the non-biological parent. that if the plaintiff had presented such plaintiff urged the court to follow See Stankevich v. Milliron, 313 Mich. evidence, the correct move for the the persuasive precedent of Ramey v. App. 2233 (2015). “I would not limit court of appeals would be to remand Sutton, 2015 OK 79, 362 P.3d 217 (2015), our application of Obergefell to cases the case for a hearing by the trial court in which the Oklahoma Supreme Court where the parties actually married in to determine whether such a thwarted applied a theory of “in loco parentis” to another jurisdiction,” he wrote. “The intent to marry could be proven by a a similar set of facts to find that a lesbian fact that marriage was available in preponderance of the evidence. co-parent should be afforded a hearing some other jurisdiction did not remove This kind of opinion can be very to show that it was in the best interest of the unconstitutional burden faced by frustrating to read, because it focuses the child for her to be recognized as a same-sex couples residing in a state that on legality and avoids human issues legal parent for purposes of custody and/ barred same-sex marriage within its that should, logically, weigh heavily in a or visitation. Judge O’Brien found that borders. The impediment was defined family relationship dispute. The keystone Oklahoma’s version of “in loco parentis,” by state law, and the existence of that of custody and visitation determinations which had never been embraced by law to those who lived under it should is supposed to be what is in the best Michigan courts, was distinguishable not now be treated as constitutionally interest of the child. Asserting technical from Michigan’s equitable-parent insignificant because other states treated standing requirements prevents the doctrine, and “our Supreme Court has the issue differently.” court from reaching this issue. The trial squarely rejected the argument that Thus, in Shapiro’s view, “plaintiff judge in this case, having accepted the holding oneself out as a child’s parent, is correct that Obergefell demands plaintiff’s argument that she could assert alone, is sufficient to be considered that extension of the equitable-parent the rights of an equitable-parent, did get child’s parent under the equitable-parent doctrine,” but only if the plaintiff to that ultimate issue and concluded she doctrine.” can show that the women would have should have parenting time with the The court acknowledged that married had the state allowed it. “My child. The court of appeals’ insistence on “especially in light of the Obergefell colleagues are rightfully concerned the technical rules of standing override decision” this sort of case is “complex”, about retroactively imposing marriage that finding, resulting in a decision that but “we simply do not believe it is on a same-sex couple simply because seemingly sacrifices the best interest of appropriate for courts to retroactively one party now desires that we do so,” the child, which is contrary to the usual impose the legal ramifications of he continued. “However, that concern policy goal of family law. marriage onto unmarried couples several is fully addressed by a factual inquiry The plaintiff also tried to argue that years after their relationship has ended,” into the facts as they existed at the time depriving the child of contact with which the court said was “beyond the the child was born or conceived. The one of her parents violates the child’s role of the judiciary.” question is whether the parties would own constitutional rights, but the court “In sum,” concluded O’Brien, have married before the child’s birth quickly dismissed this argument without “while we acknowledge that the issues or conception but did not because of any serious consideration, blithely presented in child-custody disputes, the unconstitutional laws preventing asserting, “Generally, persons do not including those involving same-sex them from doing so.” He referred to the have standing to assert constitutional couples, present challenges, we conclude Oregon Court of Appeals decision In re or statutory rights on behalf of another that the equitable-parent doctrine does Madrone, 350 P.3d 495 (2015), to support person. That is precisely what plaintiff not extend to unmarried couples. This this point. “I would adopt this approach is trying to do, i.e., assert the child’s is true whether the couple involved is and hold that a party is entitled to seek constitutional rights. Accordingly, a heterosexual or a same-sex couple.” equitable-parent rights arising out of a we reject this argument as well.” Thus, the trial court’s visitation order same-sex non-marital relationship where One wonders whether the trial judge had to be reversed. the evidence shows by a preponderance appointed a guardian ad litem to In his concurring opinion, Judge of the evidence that but for the ban on represent the child’s interest, as such a Shapiro asserted that the case could have same-sex marriage in the parties’ state party could advance this constitutional turned out differently had the plaintiff of residency, they would have married argument on the child’s behalf. Perhaps presented some evidence that the prior to the birth of the child.” But that Michigan attorneys will respond to this women would have married before their is not this case. “While the affidavits ruling by adopting a different litigation child was born had the states where they presented to the trial court on behalf of strategy to require the court to confront resided (Michigan and, briefly, Florida) the plaintiff state that the parties were the issue of the child’s best interest free allowed it. He pointed out that last year in a committed relationship and that of the standing barrier. In the meantime, the Court of Appeals had ruled in favor while in that relationship they raised the of course, the plaintiff could seek review of parental standing in a case where a child together as co-parents, none of the of this decision in the Michigan Supreme same-sex couple had married out-of- affidavits, including plaintiff’s, state or Court. state before having their child, using allow for an inference that but for the The plaintiff is represented by Jay the reasoning of Obergefell to confer, then-existing unconstitutional barriers Kaplan of the American Civil Liberties in effect, retroactive recognition of the to same-sex marriage the parties would Union of Michigan. Anne Argiroff marriage for purposes of determining have married.” Shapiro concluded represents the defendant. ■

278 LGBT Law Notes Summer 2016 Massachusetts Gay Man’s Workplace Discrimination Case Survives Summary Judgment

he U.S. District Court for the federal court and secured dismissal of Griffin and defendants disagreed as to District of Massachusetts has the federal claim. Defendants moved for whether there was a causal connection Tgranted in part and denied in part summary judgment on all of Griffin’s between his protected conduct and a summary judgment motion made state claims for unlawful hostile work the reason for his termination. Judge by Shiver Jobs Corps Center and their environment and retaliation. Casper noted that while the nine employee Jamie Wilson in a sexual District Court Judge Denise Casper months between Griffin’s letter and his orientation discrimination case brought ruled on the motion for summary termination did tend to undermine any against them by a former employee in judgment on June 28. A preliminary casual connection, Griffin also relied Griffin v. Adams & Assocs. Of Nevada, issue was whether Griffin’s claims were on “alleged discriminatory conduct he 2016 U.S. Dist. LEXIS 83760, 2016 WL timely pursuant to Massachusetts law was subjected to after his complaints 3580613 (D. Mass., June 28, 2016). requiring a claim be brought within 300 and the allegedly unjustified citations William Griffin, an overnight center days of discriminatory conduct. Judge for poor performance.” Noting that shift manager at Shriver’s business in Casper ruled that Griffin had failed to on the evening Griffin was allegedly Devens, Massachusetts, alleged that link earlier discriminatory acts under the intoxicated at work defendants did not starting in February 2012, when Wilson “continuing violation doctrine” because send G r i f fi n to t he hospit a l for a d r ug a nd / was made his supervisor, Wilson began he failed to establish that no reasonable or alcohol test as was company policy, to make discriminatory statements person would have refrained from filing Judge Casper relied on a Massachusetts at or regarding him. In April 2012, a complaint during the limitations Supreme Court case ruling that “failure Griffin wrote to Human Resources and period when Griffin had written a fifteen to follow established procedures or an investigation into the claims was page letter to management outlining the criteria . . . may support a reasonable made. Months later, Griffin received a disciplinary letter for not being in the area to which he was assigned and shortly thereafter he wrote a second Griffin alleged Wilson made discriminatory letter to Human Resources raising sexual orientation discrimination statements at or regarding him. issues. Following an investigation that resulted in no findings of discriminatory conduct, Wilson allegedly became very upset and stated to Griffin that she discrimination he believed he had faced, inference of intentional discrimination.” was “protected” and would see that and therefore he could not have had She further noted that while those “everything that needs to happen to “good reason to believe” that the issues who made the final determination to [him] happens to [him]” and later made he encountered would cease. terminate Griffin did not know of his graphic comments to Griffin regarding With respect to Griffin’s hostile work prior complaints, the decision was made his conduct “in the bathroom and with environment claim, Judge Casper noted on the recommendation of a supervisor other gay men.” Upon returning to that conduct outside the 300 days, while to whom he had made his earliest work after several months on leave, not actionable, could still be considered complaint, and that fact coupled with Griffin found Wilson was no longer his for background on the overall situation. the failure to have him take an alcohol supervisor but now a peer, and found Judge Casper found that since the alleged test as well as Wilson’s threats following that a photo of him and his boyfriend discriminatory acts against Griffin were the discrimination investigation were was damaged and in the trash. Griffin’s more than “garden-variety expletives or “sufficient to raise a reasonable inference performance was subsequently found to annoyances,” a reasonable fact-finder of pretext.” Accordingly, Judge Casper be below acceptable standards and he could find they were motivated because denied summary judgment against was placed in a corrective action plan. of gender stereotypes or Griffin’s sexual Griffin. One evening, Griffin was suspected orientation. She further ruled that the Having found that conduct prior to of being intoxicated at work and it is conduct may be found to be sufficiently September 2012 was not actionable, disputed whether coworkers later found severe or pervasive and that therefore Judge Casper granted defendants’ Griffin at a bar consuming an alcoholic triable issues of fact existed. summary judgment with respect to beverage. Griffin was shortly thereafter With respect to Griffin’s retaliation “liability regarding discriminatory acts terminated. claim, there was no question that prior to September 22, 2012,” and denied Griffin sued in state court asserting Griffin engaged in protected conduct defendants’ motions for summary claims under Massachusetts’ Law against by writing a letter alleging the judgment on Griffin’s hostile work Discrimination and 42 U.S.C. Section discriminatory conduct, and that he environment and retaliation claims. 1983. Defendants removed the case to was eventually terminated; however, – Bryan Johnson-Xenitelis

Summer 2016 LGBT Law Notes 279 Federal Court Agrees to Let VAWA Funding in North Carolina to Continue During Pendency of H.B. 2 Lawsuit

hen the Justice Department to explain how such an injunction could case. “With the consent of all parties, filed suit against North be issued when the state failed to show however,” he wrote, “courts sometimes WCarolina for a declaration that that it was likely to prevail on the merits enter preliminary injunctions without H.B.2’s bathroom provision violates of the underlying issue: whether the any findings regarding the likelihood the Violence Against Women Act bathroom provisions of H.B. 2 violate of success on the merits . . . The Fourth (VAWA), it put into play a provision of the VAWA, as alleged by the Justice Circuit has acknowledged this practice that statute, 42 U.S.C. sec. 13925(b)(13) Department. Alone among the statutes without comment.” (c), which provides that upon the filing cited by DOJ in its complaint, VAWA In stating his decision to grant of a civil action “alleging a pattern actually explicitly defines its ban on the injunction, he wrote: “The or practice of discriminatory conduct discrimination “because of sex” to court does so particularly mindful on the basis of sex in any program or include discrimination because of of how the entrenched positions of activity of a State government or unit gender identity; on top of that, of course, the parties would otherwise likely of local government which receives the 4th Circuit has already ruled in G.G. inflict substantial harm on innocent funds made available under [VAWA], v. Gloucester County School Board, third parties if VAWA funding and the conduct allegedly violates 822 F.3d 709 (April 19, 2016), rehearing were to be suspended. As the the provisions of [VAWA] and neither en banc denied (May 31), that the ban parties acknowledge, the continued party within forty-five days after on sex discrimination in Title IX (and operation of rape crisis centers and such filing has been granted such by analogy Title VII), also cited in the the other VAWA-funded programs preliminary relief with regard to the complaint, includes a ban on gender unquestionably serves the public suspension or payment of funds as identity discrimination. interest. The court is also cognizant, may be otherwise available by law, the The state is arguing, without however, that if the allegations of the Office of Justice Programs shall cause much credibility, that the bathroom complaint are correct, maintenance of to have suspended further payment of provision does not discriminate the status quo will continue to inflict any funds under this chapter to that against transgender people, “merely” harm on transgender individuals under specific program or activity alleged by requiring them to use single-gender enforcement of the law.” He cautioned the Attorney General to be in violation facilities or facilities consistent with that by agreeing to allow funding for of the provisions of [VAWA] until such their biological sex as specified on these programs to continue, neither time as the court orders resumption their birth certificate when they need party was making any representation of payment.” In other words, federal a bathroom. In a summary judgment “as to any other party’s likelihood of funding for a variety of rape prevention motion subsequently filed on July 5, success on the merits. As a result, the and domestic violence programs in DOJ blasted that contention out of the entry of this preliminary injunction North Carolina that depend on federal water, but, of course, that motion hadn’t shall not prejudice the parties’ positions funds under VAWA would have to be been filed yet when Judge Schroeder in this case or further findings by the suspended 45 days after May 10. had to decide before a statutory court.” For a while nobody was really deadline for suspending funding that Presumably, if Judge Schroeder paying attention to this, but suddenly would hit on June 23. were to grant the DOJ’s motion for somebody woke up to the reality that Ultimately, he concluded that even preliminary injunction that was filed before the end of June the federal though preliminary injunctive relief on July 5, the State would have to cease money would stop flowing to these normally depends on a strong showing enforcing H.B.2’s bathroom provision programs unless the court issued a that the defendant is likely to prevail on while the litigation continued, and thus preliminary injunction to keep the the merits, there is no controlling 4th the flow of federal money would no money flowing. United States v. State Circuit precedent that would prevent longer be endangered. Since the G.G. of North Carolina, 2016 WL 3561726 him from issuing the jointly-requested ruling by the 4th Circuit intimated, (M.D.N.C., June 23, 2016). The State injunction in light of the practical if not actually holding, that schools and the Justice Department quickly consequences of cutting off federal receiving federal funds from the reached an agreement to ask the federal funding for these important programs Education Department might have court to issue such a preliminary for the duration of the litigation. While to let transgender students access injunction, which District Judge pointing out that lack of a showing bathrooms consistent with their gender Thomas Schroeder did on June 23. of likelihood of success “is normally identity, chances do not look good for However, Judge Schroeder agonized fatal to any request for a preliminary the State to succeed in defeating DOJ’s through a rather lengthy opinion trying injunction,” this was not the usual motion for preliminary injunction. ■

280 LGBT Law Notes Summer 2016 Federal Magistrate Orders Jail Officials’ Personal E-Mail Searched for Evidence of Transphobic Bias in Medical Case

o prove an Eighth Amendment She allowed a “look-back” period of Citing Greene v. Netsmart claim of denial of health care, five years. “The Court concludes that Technologies, Inc., 2011 U.S. Dist. Ta prisoner must show both a Plaintiff has the right to pursue emails LEXIS 59710, 2011 WL 2225004, serious medical need and “deliberate and other correspondence the Individual at *8 (E.D.N.Y. Feb. 28, 2011), report indifference” to that need. Estelle v. Defendants may have created/saved and recommendation adopted, 2011 Gamble, 429 U.S. 97, 104 (1977). The on their personal computers or sent U.S. Dist. LEXIS 59730, 2011 WL “deliberate indifference” element includes from their personal email accounts 2193399 (E.D.N.Y. June 2, 2011), a subjective inquiry into the correctional which reference Plaintiff or discuss Judge Tomlinson observed: “[C] defendants’ state of mind, Farmer v. issues related to gender dysphoria. This ounsel is responsible for coordinating Brennan, 522 U.S. 825, 837 (1994), information falls within the broad scope her client’s discovery efforts[,] both on the shoals of which many inmate of relevant discovery under Federal in terms of the client’s duty to locate plaintiffs founder. But only rarely does Rule of Civil Procedure 26(b) in light relevant information and the client’s a court allow direct inquiry into a health of Plaintiff’s allegations against the duty to preserve and timely produce care providers’ state of mind. Individual Defendants and her Monell that information.” The Court required In Sunderland v. Suffolk County, claim against the County.” individual affidavits if no responsive 2016 U.S. Dist. LEXIS 77212 The decision surveys several documents were found and in camera (E.D.N.Y., June 14, 2016), U.S. federal decisions from the Second inspection for any documents deemed Magistrate Judge A. Kathleen Circuit and from District Courts “private,” accompanied by a “cover Tomlinson ordered Suffolk County, New York, jail officials to search their personal computers for evidence of what they were thinking when they denied hormonal treatment to Judge Tomlinson did not require production transgender inmate Jeremy Sunderland. of the computers themselves, nor did she While the opinion is light on medical background, it recites that jail officials order a “forensic inspection.” failed to continue pre-incarceration hormone treatment (or any other transgender treatment) for Sunderland during 16 months she was at the jail, in New York allowing discovery letter setting forth the asserted privilege because they deemed it “non-essential” of personal computer information for each document.” or “frivolous.” The complaint includes “which may contain information Such broad judicial leave to explore a claim against Suffolk County under going to bias or motivation” and “may bias is uncommon in prison medical Monell v. Dep’t of Social Servs. of City support Plaintiff’s claims of deliberate care cases in this writer’s experience. of N.Y., 436 U.S. 658 (1978), alleging indifference” – noting in particular Perhaps the court was persuaded in a failure in training and supervision the Eighth Amendment state of mind part by the allegations of such recent of providers of care for transgender cases Chance v. Armstrong, 143 F.3d and cavalier handling of a transgender patients and an attitude of “let the next 698, 704 (2d Cir. 1998); and Hathaway patient in a major jail. The case is useful correctional facility” deal with it. v. Coughlin, 99 F.3d 550, 553 (2d Cir. for those contemplating discovery of Judge Tomlinson granted a motion 1996). defendants’ LGBT bias in civil rights to compel discovery of the providers’ Judge Tomlinson did not require cases generally. computerized business and personal production of the computers themselves, Sunderland is represented by David e-mails and hard drive information nor did she order a “forensic Bradley Shanies and by Hughes according to a list of agreed search inspection”; but she reminded counsel Hubbard & Reed, LLP, New York City. terms that included gender dysphoria, that they were “obliged to supervise and – William J. Rold gender identity, transgender status, oversee the search for and production gay, lesbian, bisexual, homosexual of electronically stored information William J. Rold is a civil rights and sexual preference, as well as more and documents from the Individual attorney in New York City and a former colloquial words or phrases, such as Defendants’ computers and email judge. He previously represented the “tranny, trannie, trannies, she-male, accounts. Simply handing over the search American Bar Association on the transvestite, queer, cross-dress . . . , terms to the Individual Defendants to National Commission for Correctional hermaphrodite, he-she, [and] she-he.” run on their own is not sufficient.” Health Care.

Summer 2016 LGBT Law Notes 281 Federal Court Rules New York Medicaid Must Cover Medically Necessary Cosmetic Surgery for Gender Transitions

.S. District Judge Jed Rakoff ruled necessary” treatments for Medicaid- preclude a complete summary judgment, on pending pre-trial motions in eligible individuals. although partial summary judgment in UCruz v. Zucker, 2016 U.S. Dist. The defendant also sought favor of defendants was appropriate. LEXIS 87072, 2016 WL 3660763 decertification of the plaintiff class, This claim naturally fell into two (S.D.N.Y., July 5, 2016), a lawsuit arguing that individual issues presented distinct categories: hormone therapy brought by a team of public interest and by each transgender Medicaid participant and surgical procedures. The judge pro bono lawyers challenging the way predominate over common issues, ordered that the case proceed to trial on New York’s Medicaid program provides making one big class inappropriate. contested factual issues. Significantly, or withholds coverage for gender The defendant argued that none of the he found that some of the materials transition medications and procedures. named plaintiffs could represent the full upon which the defendant was relying Most significantly, he granted summary range of issues presented by everybody for its position should be excluded as judgment to the plaintiffs on their claim in the proposed class. Rakoff denied hearsay. As to what remains for trial, that a Medicaid regulation’s categorical this motion as well, finding that it would he wrote: “This case will proceed to ban on “cosmetic surgery” in connection be appropriate to create “subclasses” to trial to determine (1) what treatments with gender transition violates the deal with different aspects of the case, are medically necessary for individuals requirement under Medicaid to fund but that there were enough common under 18 with gender dysphoria and (2) medically necessary treatment. questions of law among all class to what extend DOH has consistently The named plaintiffs are four members to justify retaining the full followed a bona fide policy of limiting transgender individuals suing “on class certification. coverage of drug uses to those listed in behalf of themselves and all others Both parties filed motions for the Medicaid Compendia [an official similarly situated.” The lawsuit targets summary judgment, which are publication of federally-approved uses both the exclusion of coverage for supposed to be granted if there are no for drugs] in the context of treatments gender reassignment surgery and material factual issues requiring trial for gender dysphoria.” If hormone hormone therapy for individuals and it is appropriate to rule as a matter therapy and/or surgery are determined under age 18 and the regulation that of law in favor of the moving party. to be medically necessary for at least imposes, according to Judge Rakoff’s The defendant’s motion for summary some members of the under-18 class, interpretation, “a blanket ban on judgment argued that the plaintiffs lack then a blanket rule against them coverage of cosmetic procedures standing to challenge the law. While violates the statute. The second issue related to gender dysphoria,” including Judge Rakoff agreed that some of the is important because the governing procedures that plaintiff contends are named class plaintiffs lacked standing Medicaid statute does not generally “medically necessary” as part of a because they had actually obtained require coverage for the administration gender transition process. coverage for requested services, and of drugs that are not in the Medicaid Judge Rakoff had previously ruled granted summary judgment as to them, Compendia for the uses described in favor of class certification last year he found that this was not true as to all therein (which greatly oversimplifies in Cruz v. Zucker, 116 F. Supp. 3d 334 of them or the entire class, so refused the disputed issue), and there is a lively (S.D.N.Y. 2015). The named defendant, to grant summary judgment on the dispute whether particular drugs should Howard Zucker, the Commissioner ultimate issues in the case. or should not be covered in the context of the New York State Department of As to the merits, Rakoff granted of gender dysphoria therapy. Health (DOH), which administers the the plaintiffs’ motion for summary The bottom line, then, is that DOH Medicaid program, asked the court to judgment on the claim that a blanket cannot impose a blanket exclusion for reconsider its prior decision against exclusion of coverage for cosmetic what it labels “cosmetic treatments” in dismissal of the cosmetic surgery claim, surgery regardless of medical necessity connection with gender dysphoria for contending that the program does not violates the Medicaid statute. For some, adults, and yet to be determined is the actually have a “blanket ban” because this will be the big news coming out of extent to which DOH can deny coverage it has occasionally approved coverage this decision, since the categorical ban for transition-related treatments for for particular procedures on a case-by- in the regulation presented a substantial minors. case basis, but Judge Rakoff concluded barrier to individuals seeking coverage Plaintiffs are represented by that regardless of whatever steps of all the procedures they and their attorneys from the Legal Aid Society the department was taking to make doctors deemed necessary to a full, and the Sylvia Rivera Law Project, as exceptions, the written regulation is, successful transition. well as attorneys working pro bono as he previously construed it, a blanket However, as to the issue of providing from various private firms and some ban, and denied that motion, because therapy for minors, Judge Rakoff solo practitioners. The New York the overriding federal Medicaid concluded that there are significant Attorney General’s Office represents statute requires coverage of “medically material factual disputes that would the Department of Health. ■

282 LGBT Law Notes Summer 2016 Italian Supreme Court Allows Stepparent Adoption for Same-Sex Couples

n June 22, 2016 the Italian interest between the second mother and of Rome has already recognized such Supreme Court of Cassation the child, as the former was attempting an adoption (Juv. Trib. Rome, Dec. 23, O(Corte Suprema di Cassazione) to create a relationship of a couple of the 2015). Third, the Court excluded that rendered an important judgment same sex that was by definition against a conflict of interest could exist in the regarding the possibility, for a person in a the best interest of the latter. Second, case, as the respondent was simply same-sex relationship, to adopt the child she argued that the Court of Appeals seeking to consolidate a relationship of her partner. The ruling’s importance had erred in granting the stepparent that already existed as a matter of fact. lies in the fact that it addresses a matter adoption, as the law requires child In this regard, the Court clarified that – stepparent adoption in the context of a abandonment as a legal precondition for any evaluation of such a conflict of same-sex couples – that was expressly all kinds of adoption. Further, because interest is a matter for lower courts to excluded from the scope of the recent of its ethical implications, the prosecutor decide on the merits, not the Supreme civil union statute approved by the asked the petition to be adjudicated en Court. Finally, it rejected the claim that Parliament (Act on Same-Sex Civil banc (i.e., before the entire Supreme stepparent adoption requires the child’s Unions and De Facto Partnerships Court, the so-called “Sezioni Unite”, as abandonment as a precondition for (Law No. 71/2016, Official Journal No. opposed to a single panel or “Sezione”). adoption. In fact, the Law on Adoption 118 of May 21, 2016, commented upon in 2016 LGBT Law Notes 226). The petition to the Supreme Court was introduced by the public prosecutor (Procuratore Generale della The Court of Appeals of Rome concluded Repubblica) against a co-mother who that stepparent adoption was a viable had sought to adopt the child of her same-sex partner. In the first instance, tool for same-sex couples to create a legal the Juvenile Tribunal of Rome (No. relationship between the biological parent’s 299/14 of July 30, 2014, commented upon in 2014 Lesbian/Gay Law Notes same-sex partner and her child in absence of 425) granted the petition, arguing that under the current law, sexual orientation any statutory recognition. is not a factor that could prevent such an adoption, and that the applicant was simply seeking to consolidate, from a legal standpoint, a situation The Supreme Court rejected all these of 1983 (Law No. 184 of May 4, 1983, that already existed as a matter of fact. claims and elaborated some principles Right of the Minor to a Family) provides Moreover, the Tribunal found that the to direct lower courts presented with for a residual mechanism, the so-called child had developed a genuine bond petitions for same-sex stepchild adoption. “adoption in particular cases”, which with the applicant, so that the adoption First, the Court stated that hearing a requires only that pre-adoption foster could in no way harm the child. Upon case en banc is a purely discretionary care not be feasible.For same-sex appeal presented by the juvenile public decision which the Court is therefore couples, foster care is by definition not prosecutor, the Court of Appeals of not obliged to take depending on the feasible because the child already has a Rome affirmed the ruling Procuratore( case’s alleged ethical implications. “The parent – the biological one. della Repubblica presso il Tribunale dei Court of Cassation,” the Court said, At the end of the ruling the Supreme Minori v. X, Dec. 23, 2015), concluding “has already decided through single Court stated very clearly that, in the that stepparent adoption was a viable panels on questions related to socially or context of adoption in particular cases, tool for same-sex couples to create a ethically significant matters.” Second, courts may not consider the parent(s)’s legal relationship between the biological it stressed that the case at stake did sexual orientation to be relevant, either parent’s same-sex partner and her child not concern surrogacy, because the directly or indirectly. The judiciary in absence of any statutory recognition. biological mother (the respondent’s made a point that the legislature hasn’t The application filed by the public partner) had recognized the child at even dared to take with the new law. – prosecutor with the Supreme Court her birth. This statement would exclude Matteo M. Winkler concerned two arguments, plus a third that the same plain reasoning could one that was added in the course of the be applied to a couple of men seeking Matteo M. Winkler is an Assistant Pro- hearing. The prosecutor claimed, in stepparent adoption of a child born from fessor in the Tax & Law Department at particular, that there was a conflict of a surrogacy abroad, even if the Tribunal HEC Paris.

Summer 2016 LGBT Law Notes 283 Massachusetts Appeals Court Vacates Statutory Rape Conviction Because of Improper Admission of Gay Porn in Evidence

he Appeals Court of Massachusetts defendant “inserted the sex toy into that “these descriptions were not ruled in Commonwealth v. Daniel’s anus, stopping when Daniel introduced as impermissible propensity TChristie, 2016 WL 3581839, said he was ‘uncomfortable.’” Daniel evidence” and that the judge had 2016 Mass. App. LEXIS 79 (July 6, also testified that defendant showed carefully instructed the jury that “the 2016), that the conviction of a man him some gay pornography depicting challenged evidence could not be on charges of statutory rape, indecent men having intercourse. used to demonstrate the defendant’s assault and battery on a boy had to be The court described the defendant propensity to engage in such conduct reversed because of improper evidence as “openly gay.” Referring to rulings in order to prove that he committed the based on the defendant’s possession at trial on admissibility of the charged acts in this case,” nonetheless of videos depicting “generic same- pornography evidence, “the judge it was improper for the judge to tell sex sex” involving adults. At the concluded correctly that evidence of the jury that they could rely on these same time, the court affirmed the a man’s homosexuality is irrelevant descriptions of the videotapes as defendant’s conviction on a charge of to whether he has a sexual interest in evidence of “sexual interest and state of “dissemination to a minor of matter children,” wrote Judge Peter J. Rubin, mind . . . as it relates to [Daniel] and harmful to minors” for showing his “but in part in reliance on our decision as it relates to the manner and means 12-year-old male victim a pornographic in Commonwealth v. Wallace, 70 Mass. by which the Defendant allegedly video. App. Ct. 757 (2007), he concluded that accomplished the alleged sexual assault.” While the Wallace case had allowed admission of heterosexual pornography, the court found the circumstances distinguishable in light “As the judge in this case recognized, however,” of the contentions of the parties and the wrote Judge Rubin, “and as this court has overall state of the evidence in that case. “As the judge in this case recognized, held, evidence of an adult’s homosexuality is however,” wrote Judge Rubin, “and irrelevant to sexual interest in children.” as this court has held, evidence of an adult’s homosexuality is irrelevant to sexual interest in children.” Rubin cited on this point the appeals court’s ruling in 2009 setting aside the conviction of In 2005, wrote Judge Rubin, Daniel the same-sex pornography was relevant Bernard Baran, a young man who was “disclosed to his mother and the police to the defendant’s sexual interest in convicted of molesting children at the a single alleged act of the defendant Daniel and to the manner and means day care center where he work based on performing oral sex on him, and on that by which the charged rapes and sexual subsequently-discredited “rehearsed” basis the defendant was charged with assault were allegedly committed, testimony by young children and by one count of statutory rape. On the eve that the risk of unfair prejudice from the fact that he was openly gay. (Baran of trial, in 2007, Daniel disclosed to the this evidence did not substantially was discharged from state prison after district attorney and the police all the outweigh its probative value, and that a lengthy and debilitating incarceration other alleged sex acts.” Police obtained with a proper limiting instruction and died prematurely a few years later.) a search warrant for the defendant’s the videotapes could be admitted in Once again citing the Baran ruling residence, and turned up DVDs and evidence. The judge excluded the (74 Mass. App. Ct. 256), Rubin wrote, videotapes depicting both heterosexual heterosexual pornography.” As an “the myth that homosexual men and homosexual pornography depicting attempt to lessen prejudice to the have an interest in sex with underage adults. At trial, Daniel testified that defendant, the trial judge refused to children has been discredited. The use during the summer of 2005, when he was have the gay pornography exhibited of evidence of an adult’s homosexuality 12, he and his mother were living with to the jury, instead allowing the to demonstrate a sexual interest in the defendant, who twice performed prosecution to introduce testimony underage boys (or, indeed, underage oral sex on him and got him to penetrate describing its content. children of either gender) is thus the defendant anally. He also testified The appeals court disagreed with impermissible. Given this, we agree about waiting in the car while defendant the trial judge as to admissibility of with the defendant that evidence of purchased a “sex toy” (i.e., a dildo) and the descriptions of the gay videos. his interest in viewing depictions of some pornographic DVDs, and that the While agreeing with the prosecution adult males engaged in generic acts

284 LGBT Law Notes Summer 2016 of same-sex sex, absent any additional lawfully possessed depictions of adults factors like the ones present in engaged in heterosexual sex cannot Wallace, is irrelevant to whether he support a conclusion that a male adult has an interest in sexual contact with has an interest in engaging in sex acts an underage boy. The impropriety of of the same kind with underage girls.” admitting this evidence to show the Judge Rubin also commented that defendant’s state of mind and sexual because it was “undisputed” that the interest with respect to boys becomes videos seized by the police in 2007 were clear if one imagines that the evidence not shown to Daniel by the defendant was about heterosexual pornography in 2005, they could not be admitted in

and the victim were a girl. No court support of a theory that the defendant theirof browsers. Members LeGaL Wouldn’t you rather be reading it Are you reading this properly could find a defendant’s showed him the videos to “groom him” mere possession of adult heterosexual into accepting the idea of having sex with pornography relevant to proving his the defendant. “Any such corroborating sexual interest in a female child.” value of the defendant’s possession of “The ingrained stereotypes and these videotapes of generic acts of adult mistaken views still held by some same-sex sex – at a different residence, individuals render evidence such as that two years after the crimes are alleged to introduced here unfairly prejudicial. have been committed – is too attenuated Even though there was other evidence to overcome the risk of undue prejudice that the defendant here, who never from this evidence,” he wrote. “These disputed his sexual orientation, was depictions thus may not be admitted for gay, and that he owned pornography, such a corroborative purpose under the

the error in the admission of the explicit applicable standard.” comfort the from enjoy issues current descriptions of his interest in same-sex One of the videos seized by the sex, exacerbated by the instruction on police showed the use of a dildo, and today le-gal.org! at Join its permissible use, was prejudicial.” one of the counts of statutory rape

The court concluded that reversal “involves an allegation of the use of such in the stacks of your law library? was required on all counts except a device in a similar manner on Daniel,” dissemination, “with respect to which wrote Rubin. However, he wrote, the the jury were expressly informed they prosecutor “has not put any evidence could not use this evidence.” in the record before us to show that use Since retrial was likely, the court of a sex toy is a sufficiently distinctive addressed other flaws in the trial court’s sexual act that it could be admitted to instructions. The jury had been told show the defendant’s specific interest in they could take the descriptions into this practice . . . There is nothing in the account “as it relates to the manner record to support a conclusion that this and means by which the defendant conduct is so unusual that the probative allegedly accomplished the alleged value of evidence that the defendant yourat desk sexual assaults.” Judge Rubin rejected possessed a visual depiction of it is more the prosecution’s argument that the probative of his interest in engaging in acts depicted in the videos were it than unfairly prejudicial. Nor is there “unique enough” to “show that the evidence that interest in the use of defendant had an interest in engaging such a sex toy with an adult would be in those acts, whether with an adult or probative of an individual’s interest in a child.” This was “generic” gay porn, using one with an underage child with the judge pointed out, “the ordinary whom he was unlawfully having sex.” means of men having same-sex sex. It The court disclaimed expressing ? follows from our holding above that, any view about the defendant’s guilt or standing alone, an interest in viewing innocence, but held that the statutory lawfully possessed depictions of adult rape convictions must be reversed men having gay sex is not relevant to and the verdicts set aside, although, the question whether a male adult has as noted above, the conviction on the an interest in engaging in sex acts of dissemination charge was affirmed. that kind with underage boys, just as, Alexei Tymoczko represented the standing along, an interest in viewing defendant on this appeal. ■

Summer 2016 LGBT Law Notes 285 CIVIL LITIGATION

ALABAMA – The Alabama Court of that the Judicial Inquiry Commission injunction and final judgment in the Judiciary has acceded to a request had filed papers with the Court of Strawser v. Strange, 2016 WL 3199523 by suspended Alabama Chief Justice Judiciary arguing that Moore should (S.D. Alabama). She found no evidence Roy Moore to hold a hearing on his be removed as Chief Justice in order to in the record to justify reconsidering motion to dismiss ethical charges “preserve the integrity, independence, her prior decision to designate Davis that were levied against him by the impartiality of Alabama’s judiciary.” as the defendant class representative. Alabama Judicial Inquiry Commission The Commission asserted that Moore Responding to the mootness argument, in response to complaints that he had had “disrespected the judiciary” by in which Attorney General Strange violated judicial ethics by advising instructing probate judges in January conceded that Obergefell v. Hodges is probate judges not to issue marriage 2016 that a state injunction against binding on Alabama officials – a point licenses to same-sex couples after same-sex marriage remained in “full not yet conceded by suspended Alabama the U.S. Supreme Court had ruled in force and effect” even though the U.S. Supreme Court Justice Roy Moore, who Obergefell that same-sex couples have Supreme Court ruled in June 2015 that maintains that Obergefell is binding a constitutional right to marry. Moore same-sex couples have a constitutional only on the states of the 6th Circuit – she contends that the directive he issued was right to marry and a U.S. District Court found persuasive the plaintiffs’ argument merely informing the probate judges had issued an order to probate judges that “none of the Defendants’ assurances of his opinion about the situation; he banning enforcement of the state’s provide Plaintiffs or the members consistently took the view that the same-sex marriage ban. * * * The of the Plaintiff Class with a formal, state courts, including the probate Associated Press (June 17) reported enforceable order should the Attorney judges, were not bound by federal court that Alabama Supreme Court Justice General (or a future Attorney General) rulings when it came to interpreting Tom Parker filed a lawsuit in federal or other Defendants violate this Court’s and enforcing the provisions of the state district court, claiming that the Judicial injunction or fail to fully recognize constitution, including its ban on same- Inquiry Commission is violated the marriages validly entered into in sex marriage. The hearing will take First Amendment rights of Alabama Alabama or elsewhere. Current or future place on August 8. Meanwhile, Moore judges to speak out against the U.S. state and county officials may disagree has filed a federal lawsuit, contesting the Supreme Court’s marriage equality about Obergefell’s applicability to the constitutionality of Alabama’s judicial decision. The Southern Poverty Law challenged Alabama laws or otherwise disciplinary system, under which he Center filed a complaint before the resist the decision. This Court agrees was automatically suspended when the Commission against Parker after that the need for a permanent injunction JIC asserted the charge against him. He he spoke out against the Obergefell is clear.” She quoted from a similar is represented in the federal lawsuit by decision on a conservative radio talk ruling by the district court in Florida in Alliance Defense Freedom, the right- show in 2015. He is represented by Brenner v. Scott, stating “a government wing anti-gay litigation group that is Mat Staver of Liberty Counsel, who ordinarily cannot establish mootness also representing another member of the asserts that Parker “has a constitutional just by promising to sin no more.” “To Alabama Supreme Court, Tom Parker, right to speak out on the case so long demonstrate the case is moot,” she who has been notified that the JIC is as he is not presently presiding over wrote, “Defendants must show that both investigating him for public comments it.” Parker’s lawsuit challenges the of the following conditions are satisfied: he made about same-sex marriage. Oral “automatic suspension” provision, (1) it can be said with assurance that arguments on JIC’s motion to dismiss under which judges are suspended from there is no reasonable expectation that the federal case, pending before U.S. active duty if the Commission decides the alleged violation will recur, and (2) District Judge W. Harold Albritton III, to investigate charges against them. interim relief or events have completely will be held on August 4. Moore was and irrevocably eradicated the effects of previously removed as Chief Justice the alleged violation.” Those conditions in 2003 after he defied a federal court ALABAMA – Is the Alabama marriage have not been met in Alabama, she order to remove a Ten Commandments equality case finally at an end? On found. “Given the actions of Alabama monument from the state supreme court June 7, Senior U.S. District Judge Callie state and local officials during this building, but he was subsequently re- V. S. Granade denied a motion by Judge litigation, both before and after the elected by the people of Alabama, who Don Davis to withdraw as defendant Supreme Court decided Obergefell, evidently prize spunk over judgment class representative and a motion by it cannot be said with assurance that in their Supreme Court justices. Attorney General Luther Strange to there is no reasonable expectation that Huntsville Times, June 29. * * * The dismiss the case as moot; instead, she Alabama’s unconstitutional marriage Associated Press reported on July 16 granted plaintiffs’ motion for permanent laws will not again be enforced.

286 LGBT Law Notes Summer 2016 CIVIL LITIGATION

Although the Attorney General both in discharging the worker and either as to the Title VII/ADEA claims professes that he will continue to abide in requiring employees to report their or the state law defamation claim. That by the decision in Obergefell, like the use of prescription medications which the plaintiff is a lay person representing defendant in Brenner v. Scott, ‘there would reveal conditions deemed to be himself does not excuse failing to has been nothing voluntary about disabilities. The John Doe worker was file within statutory deadlines. The the defendants’ change of tack.’ The hired in November 2014 to perform discrimination statutes require that a Defendants defended this case with janitorial duties, operate a cash register, claim be filed in federal court within vigor from the outset and the challenged work the drive-thru window, and open 90 days after the Right to Sue letter is statutes remain on the books.” She and close the restaurant. Doe was not received, and Arkansas slander claims pointed out the technicality that these hired as a food handler. must be filed within a year. plaintiffs cannot enforce the injunction that she issued in the companion case of Searcy v. Strange, which is the injunction ARKANSAS – In Huff v. Regis CALIFORNIA – On June 27 Los against the Attorney General, and, “It is Corporation, 2016 WL 3453471, 2016 Angeles County Superior Court Judge also apparent that certain Alabama state U.S. Dist. LEXIS 79925 (W.D. Ark., Ann I. Jones signed a settlement courts do not view this Court’s ruling June 20, 2016), the plaintiff suffered judgment in the coordinated actions in Searcy as binding precedent, as dismissal of his Title VII and ADEA of Werner v. Spark Networks, Inc. demonstrated by the writ of mandamus complaint because he waited too long and Wright v. Spark Networks, Inc., issued by the Alabama Supreme Court after receiving a right-to-sue letter from Case No. JCCP4823, in which two on March 3, 2015, requiring probate the Equal Employment Opportunity gay men alleged that the defendant, judges to discontinue the issuance of Commission before filing his complaint the owner/operator of several dating marriage licenses to same-sex couples.” in federal court. Robert Huff was websites (including, most prominently, So there, Roy Moore, your antics employed as a stylist at a hair salon in ChristianMingle.com), was violating have helped to prevent Strange from Fayetteville from 1992 until he was the Unruh Act, California’s public obtaining a mootness dismissal! She discharged on January 13, 2015. In accommodations statute, by providing also pointed out that although Moore his EEOC charge he related a tale of services that only made matches for is currently suspended, other members ridicule and harassment focused on his different-sex couples. As part of the of the Alabama Supreme Court in sexual orientation and age that would settlement, Spark must allow users of concurring opinions “also expressed possibly be sufficient to meet federal the websites to seek same-sex matches, disagreement with Obergefell” and pleading requirements. However, the and has up to 24 months to tailor the implied in their opinions that their EEOC dismissed his charge and issued a websites to enhance its receptiveness court’s decision finding the marriage right to sue letter on September 23, 2015. to same-sex searches. In the words of laws constitutional was still in effect. Huff then waiting until March 23, 2016, the judgment, “Spark represents and As long as that mandamus order has to file his pro se complaint in the federal warrants that it is updating the Mingle not been rescinded, there is no certainty district court, alleging discrimination Sites, and to the extent Spark continues that Alabama officials will behave and defamation. The employer moved to operate any of the Mingle Sites in appropriately. Thus, Judge Granade to dismiss, asserting both causes of the future, such sites will be updated to issued a permanent injunction against action were time-barred. Responding to create an experience which will allow enforcement of the unconstitutional the motion, Huff wrote: “I understand individuals seeking same sex partners statutes. about the time limits clearly. It was a to use Spark’s matching technologies to misjudgment to turn the EEOC Right find and be matched with others seeking to Sue letter in late.” But he argued his same sex partners. For all of Spark’s ARKANSAS – Reuters reported July 5 case should not be dismissed because, sites to remain operational, Spark will that the Equal Employment Opportunity wrote District Judge Timothy L. Brooks, update them within 24 months of the Commission (EEOC) filed a lawsuit “he feels he has evidence to prove his date of this Judgement.” Prior to this accusing a McDonald’s restaurant case on the merits, and ‘everyone in the settlement, those registering on the in Bentonville, Arkansas, of firing a United States has a right to be heard site had to identify themselves either worker because he is HIV-positive. in front of a judge and even a right to as “man seeking woman” or “woman EEOC v. Mathews Management Co., a fair trial.” But time limits are, after seeking man.” Messrs. Werner and No. 16-05166 (W.D. Ark., filed July 1, all, time limits, and Judge Brooks found Wright felt unfairly left out. Media 2016). The complaint alleges violations that this case did not qualify for any comment focused on ChristianMingle. of the Americans with Disabilities Act, of the exceptions for equitable tolling, com, and the intriguing idea that gay

Summer 2016 LGBT Law Notes 287 CIVIL LITIGATION

Christians might be seeking religiously substantive unconscionability, and both judgment motion, finding that there compatible mates. Wall Street Journal, must be present to provide grounds to were contested facts. For purposes of June 30; Washington Post, July 7. void an arbitration agreement. deciding the motion, he considered whether Cobb’s claims would be valid if the officers’ version of events was CALIFORNIA – The 2nd District Court CALIFORNIA – U.S. District Judge believed, and concluded that under those of Appeal, reversing a decision by Roger T. Benitez denied summary facts the officers had cause to do what Los Angeles County Superior Court judgement to a man who was suing they did. If their physical description Judge Michael L. Stern, ruled on June for false arrest and violation of his 4th of Cobb was believed, they could have 27 that an employment discrimination Amendment rights as a result of his arrest reasonably concluded that he was high plaintiff alleging, inter alia, sexual by undercover police officers patrolling on something. The judge observed, in orientation discrimination in violation a known gay “cruising area” in Balboa connection with Calderson’s recorded of California law, was required to Park. Cobb v. Rodriguez, 2016 WL remarks, that Cobb was not arrested for submit his claim to binding arbitration. 3585459 (S.D. Cal., May 13, 2016). Police a sex crime, but rather for being under Urchasko v. Compass Airlines, 2016 officers Calderson and Rodriguez were the influence of drugs in public. That Cal. App. Unpub. LEXIS 4836, 2016 “notified that an individual may have the police turned out to be mistaken WL 3597425. John Urchasko sought to propositioned an undercover officer for as to that was not dispositive of the avoid arbitration by claiming that when sex.” While questioning two individuals, question of their legal liability to Cobb he filled out the on-line employment they “heard moaning of a sexual nature because, “where an officer has probable application he had failed to check a and rustling coming from behind some cause for an arrest, he cannot be liable box acknowledging his agreement to bushes.” They aimed flashlights at the for false arrest. As genuine issues of arbitrate. There was testimony on the bushes and saw John Cobb “walking out material fact exist and as Plaintiff has motion that some sort of “computer of the wooded area and zipping up his failed to demonstrate as a matter of law glitch” had caused the relevant box not to pants.” They identified themselves as that Defendants did not have probable appear on the application completed by police officers and asked Cobb to speak cause, he has also failed to show that he Urchasko. But the text of the application to them. Cobb moved away from them was falsely arrested as a matter of law.” made clear that the applicant agreed to and they moved to block his path. They The court also rejected a conspiracy submit all disputes to arbitration, said the claim that he began “cursing and yelling claim, saying that Cobb “does little court of appeal, rejecting Judge Stern’s that the officers had no right to speak to more than conclude that Calderson and conclusion that failure to check the box him.” They put him in handcuffs and sat Rodriguez (and others who are not a meant that Urchasko had not agreed to him on a bench. “Calderson observed party to this action) are engaged in a arbitrate. The court also rejected Stern’s that plaintiff could not sit still, was conspiracy to harass homosexual men,” conclusion that the text of the arbitration sweating profusely on a cool night, and but that he had presented no evidence of provision was unconscionable as a take- that his eyes and fingers were moving any agreement between the officers, and it-or-leave-it contract in “tiny font” that uncontrollably.” Calderson concluded Calderson testified in discovery that “no was “replete with confusing exceptions, that Cobb was “under the influence of one directed him to arrest Plaintiff and legalisms, and legal authorities” a controlled substance” and took him to the record reveals no evidence to dispute and lacked a copy of the American the police station, where a blood sample Calderon’s testimony.” Furthermore, Arbitration Association rules to which it was drawn and Cobb was booked and of course, Calderson did not stop and referred. The court of appeal pointed out spent the night in jail. The test proved arrest Cobb “for activity related to that there was no dispute that Urchasko negative and he was not prosecuted. Plaintiff’s homosexuality” but rather had signed the employment application, Cobb sued for false arrest and violation for his appearance of being stoned. The which included the text binding of his 4th Amendment rights, relying in court deemed Calderson’s comments him to arbitrate disputes with the part on recorded comments Calderson irrelevant to Cobb’s case. company. “Urchasko’s signature on that made during his shift: “BTW were agreement, therefore, unquestionably working Redwood Circle . . . otherwise constituted an objective manifestation known as Gay Sex Ville . . . we’re CALIFORNIA – The opinion by Justice of his assent to arbitration.” As to scoops fir he lucky UC units hahaha” Kenneth R. Yegan of the California 2nd unconscionability, the court found and “Well at least I wasn’t the UC District Court of Appeal in Butler v. that while there might be “aspects” units getting propositioned for gay LeBouef, 2016 Cal. App. LEXIS 480, of procedural unconscionability in sex LMAO.” Whatever that means . . . 2016 WL 3398418 (June 20, 2016), this case, there was no evidence of Judge Benitez denied Cobb’s summary sounds like a synopsis of an anti-gay

288 LGBT Law Notes Summer 2016 CIVIL LITIGATION noir movie plot. One gets the gist from social security benefits for the next seven to his complaint, was treated in a an introductory paragraph summarizing years! The court noted a California discriminatory manner throughout his what the case is about: “An ethical statute that “prohibits donative transfers employment, both because of his race estate planning attorney will plan for to broad categories of persons who, and his gender identity, was set up to his client, not for himself. A license because of their relationship with the fail by the work group to which he was to practice law is not a license to take settlor/trustor, might exercise undue assigned, and obtained no relief despite advantage of an elderly and mentally influence. Undue influence is presumed his frequently complaints, the last of infirm client. As we shall explain, where the donative transfer is in favor of which apparently led to his discharge. the factual findings of the trial court the person who drafted the instrument Harris v. Halliburton Company, 2016 compel the conclusion that appellant or where the person who transcribed WL 3255074 (E.D. Cal., June 13, 2016). used his license to take advantage it or caused it to be transcribed had a But his claims will probably never see of an elderly and mentally inform fiduciary relationship with the settlor/ the inside of a courtroom, because U.S. person to enrich himself. The trial trustor.” Of course an attorney-client Magistrate Judge Jennifer L. Thurston court factual findings are disturbing, relationship would qualify. The court recommended granting the company’s fatal to appellant’s contentions, and rejected the appellant’s argument motion to compel arbitration of all suggest criminal culpability.” What against reliance on the prior incidents, claims. The key ruling came in the part makes the case relevant for Law Notes noting that a forensic expert had credibly of her opinion discussing “governing is that appellant, John F. LeBouef, is a testified to the unitary authorship of law.” Harris pointed to a provision of gay attorney, and the elder client, John the documents in the various cases, the Defense Appropriations Act of Patton, was a gay “renowned interior which showed a pattern of operations. 2010, under which “any government designer” who was grieving the death In a footnote, the court noted that the contractor which accepts a contract in of his domestic partner “and by the “original trust document and a laptop excess of $1M from the Department of end of his life, was often emotionally computer used by the appellant to Defense must agree to not enter into out of control.” He was befriended by prepare trust documents” had been any new or enforce any arbitration the appellant and the appellant’s life “lost” in a suspicious “burglary” the agreement that requires arbitration partner, who insinuated themselves into “occurred just before appellant was of Title VII and certain employment the client’s affairs and who instigated scheduled to produce the documents tort claims. Thurston found this did a change in the client’s estate plan to for his deposition and a forensic not apply to the case. “Significantly,” substitute appellant for client’s nieces examination. The police suspected it she wrote, “however, the Defense as his principal beneficiary and gifted a was a staged burglary because nothing Appropriations Act applies to “military vintage car to a friend and tenant of the else was taken and the house was made contractors with contracts of at appellant. “It was a radical change” in to look like it was ransacked. Expensive least $1 million,” and “imposes no the estate plan, according to the court, watches and art work were in plain sight substantive prohibitions on arbitration.” and after the client died, the nieces but were not taken.” There were also “Because this action does not involve a challenged the will successfully in this discrepancies about when the client’s government contract,” she wrote, “the case. The nieces were able to show that death was reported to 911, which the Defense Appropriations Act ‘simply the appellant had pulled off similar trial court found “troubling because it does not apply’.” On the other hand, schemes on eight prior occasions, but suggested that appellant spent hours she found that the Federal Arbitration the trial court limited the evidence to in Patton’s house before reporting the Act does apply and mandates ordering the two most recent cases in which death.” This is an amazing case to read. arbitration so long as the arbitration “appellant befriended an elderly Somebody should consider turning it agreement is not both procedurally person and drafted a will or trust into a film. An unfortunate tale of gay and substantively unconscionable. In naming himself or his partner principal people acting badly . . . this case, Halliburton seems to have beneficiary.” Indeed, in one case, designed its forms to comply with appellant actually married an elderly the objections that California courts woman who was a caretaker who had CALIFORNIA – Halliburton, a major have raised at times to employment inherited substantial money from her defense contractor that earns millions of arbitration agreements as being too patient; before the caretaker passed dollars from government contracts every one-sided or imposing inequitable away, the appellant drafted her trust year, is being sued by Harrison Y. Harris, financial burdens on employees. She naming himself principal beneficiary, an African-American transgender man, found in this case a “knowing waiver” received the bulk of the estate on her an Army veteran who holds a computer of the right to trial by Harris, and that death and collected surviving spousal engineering degree, who, according the arbitration agreement itself was

Summer 2016 LGBT Law Notes 289 CIVIL LITIGATION not oppressive or substantively unfair. case include Omar Gonzalez-Pagan and identify the sexual orientation provision “Plaintiff and Defendants entered into Karen Loewy; cooperating attorneys of the state law on that form, he failed to a valid arbitration agreement, which working on the case include Benjamin exhaust administrative remedies and his encompasses the issues in dispute,” N. Simler and Matthew P. Castelli of claim must be dismissed by the court. she concluded. “As a result, ‘there Holland & Hart LLP. Judge Wenzel, while characterizing the is a presumption of arbitrability’ issue as a “close call,” found that “the and Halliburton’s motion to compel discrimination asserted in Count One arbitration should not be denied.” Judge CONNECTICUT – Superior Court Judge was reasonably related to the allegations Thurston’s report and recommendation William J. Wenzel denied a motion by the contained in plaintiff’s Affidavit and will go to Chief District Judge Lawrence Connecticut Department of Corrections hence not barred by the doctrine of J. O’Neill. to dismiss a sexual orientation exhaustion.” Indeed, it is hard to credit discrimination claim by an employee that the agency is asserting that it was not of the Department on exhaustion of put on notice of the nature of the claim COLORADO – Lambda Legal filed administrative remedies grounds in when the affidavit refers to plaintiff a partial summary judgment motion Velazquez v. State of Connecticut being called “homo” and “faggot” and in Smith v. Avanti, Civ. Action No. Department of Corrections, 2016 WL being subjected to demands to give 1:16-cv-00091-RM-MJW (D. Colo., 3265950 (Judicial Dist. of Fairfield at oral sex to another male staff member! motion filed June 16, 2016), an action Bridgeport, May 18, 2016). In the form “Clearly being called ‘homo’ and challenging a landlord’s discrimination complaint that Ernesto Velazquez filed ‘faggot’ immediately raise questions against a same-sex couple, one of with the Commission on Human Rights, about sexual orientation as these are whom is transgender, who were denied Velazquez did not expressly state that he the very essence of such terms,” wrote rental housing in Gold Hill, Colorado, had been subjected to sexual orientation the judge. “These terms, especially the because, as the landlord informed them, discrimination and did not identify his later, are immediately recognized as she feared the couple’s “uniqueness” sexual orientation. He checked off the almost always intended to insult and would jeopardize the landlord’s boxes for the general state employment demean a person simply because of position in the small community. In discrimination statute and Title VII, their orientation.” Furthermore, “to terms of building anti-discrimination but not the specific provision on sexual expect a self-represented person trying doctrine for LGBT people, this case orientation claims. “The operable to complete this form to recognize the is an important potential precedent to language of the Affidavit” that he appropriate statutory cite is indeed establish that discrimination because submitted with his administrative asking quite a bit,” and his citation of of sexual orientation or gender identity complaint states “I was sexually the general statute at least invoked the (both implicated in the case) is harassed, subjected to unequal terms state’s anti-discrimination law, “which “discrimination because of sex” within and conditions of my employment, expressly includes the deprivation of the meaning of the federal Fair Housing and treated unfairly based on my sex rights based on sexual orientation. Act. (If the Equality Act introduced in (male).” In the space on the form for Whether or not it is a perfect fit, it puts Congress in July 2015 were to be passed, narrative, he “alleges being referred to the agency on notice of all the potential the Fair Housing Act would be amended as ‘homo’ and ‘faggot’ and being called claims covered by the statutory to explicitly prohibit discrimination ‘bitch’ and ‘crazy.’ He alleges he was language.” In other words, Judge Wenzel because of sexual orientation and intimidated and insulted by being told was being very kind to the attorney for gender identity.) In its motion, Lambda to provide oral sex to another male staff the Corrections Department when he Legal uses federal court decisions member. He also alleges other forms of called this a “close call.” The exhaustion under other sex discrimination statutes insult or harassment not overtly sexual argument strikes us a bordering on the – most prominently Title VII of the in nature.” The Commission “released frivolous. Civil Rights Act of 1964 – in arguing its jurisdiction over this complaint that the discrimination alleged in this allowing plaintiff to commence a civil case, if proven, should be deemed to action based on that complaint.” In the FLORIDA – Florida Attorney General be sex discrimination. Although the civil action, he alleges sexual orientation Pam Bondi’s office has reached a basic facts are not disputed, the motion discrimination. The agency’s motion to settlement with two sets of attorneys does not seek an ultimate ruling on the dismiss argued that because Velazquez who represented successful plaintiffs merits, but focuses on getting the court did not explicitly posit his administrative in marriage equality litigation over to rule that the FHA applies to this case. complaint as a sexual orientation the subject of attorneys’ fees, after Lambda staff attorneys working on the discrimination complaint or specifically U.S. District Judge Robert Hinkle

290 LGBT Law Notes Summer 2016 CIVIL LITIGATION ruled in April that the plaintiffs were Safe Schools Alliance and several her gender identity, potential plaintiffs prevailing parties and urged the state transgender students to intervene in have to be inventive to find a cause of to negotiate a fee settlement. According order to defend the settlement agreement action. A transgender woman, Carmen to an Associated Press report, the total between the federal government and Carter-Lawson, who encountered agreed upon is just under $500,000.00. Township High School District 211 disrespectful conduct from a tow- The ACLU of Florida will receive under which transgender students at the truck driver, sought to hold the driver’s $213,000.00, and attorneys from school will be allowed to use restroom employer liable under 42 U.S.C. sec. Jacksonville will receive $280,000.00. facilities consistent with their gender 1983, alleging sexual harassment and thenewstribune.com, June 2, 2016. identities. The case was instigated by “misconduct of business.” Carter- lawyers from the Alliance Defense Fund Lawson v. Affordable Towing, 2016 (a/k/a Alliance Defending Freedom), U.S. Dist. LEXIS 79097 (N.D. Ind., HAWAII – Honolulu Civil Beat (June an anti-gay “religious” litigation group June 17, 2016). Carter-Lawson filed pro 8) reported that the Hawaii Department that organized some disgruntled parents se and asked to have filing fees waived. of Education has created guidelines and and students to form “Students and District Judge Philip P. Simon pointed policies for use by the state’s public Parents for Privacy” in order to bring out that because of the requested fee schools in accommodating transgender this lawsuit, challenging the settlement. waiver, he was obligated to review the students. The policies, modeled on They are arguing that the Education complaint and dismiss it if the action those adopted by California and New and Justice Departments violated the is frivolous or malicious, fails to state York, “will offer transgender students Administrative Procedure Act by a legal claim, or seeks monetary relief alternative bathroom, uniform and locker adopting a “new rule” without going from a defendant who is immune room arrangements that correspond through the notice and hearing process, from such relief. He decided this case with their gender identity,” according and that this “new rule” (that Title IX fell in the second category, because to the article. “Nurse’s bathrooms forbids gender identity discrimination) there was no plausible allegation will also be an option for transgender is not a valid interpretation of the that the defendant was a state actor, students or non-transgender students statutory ban on sex discrimination a prerequisite for a suit brought who are uncomfortable changing in by educational institutions that receive under Sec. 1983, which deals with the same locker room.” The guidelines federal funding. They have also filed deprivations of rights secured by the also recognize the right of students a copycat lawsuit in North Carolina, Constitution by a defendant who was to wear clothing typically associated seeking to uphold that state’s “bathroom acting under color of state law. Carter- with their gender identity, to use their bill” which is being attacked in court Lawson ingeniously suggested that preferred names and gender identity and by the federal government and private because the local police department pronouns, but official school documents plaintiffs represented by the ACLU required Affordable Towing to have will contain the same information as and Lambda Legal. While conceding her sign a release in order to get her car legal documents, such as passports or that allowing intervention might make back, there was state action involved, birth certificates. A student can begin the case more “complex” because the but the court was not buying. “In plain “transitioning” at school without any individual stories of the intervening English,” wrote Simon, “the mere involvement of a doctor or their parent. students will now become relevant, fact that the Gary Police Department DOE “also drafted an individualized, Judge Alsonso wrote that it would not instructed Affordable Towing to have confidential support plan to make it make it “unnecessarily complex,” since Carter-Lawson sign a release regarding easier for school staff to keep track of the issues they will present are germane her settlement with Gary when she the students’ legal names, preferred to the lawsuit, and resolving those picked up her car is not enough to claim names and pronouns, chosen locker issues in this case might stave off future that the employee was acting at the room/bathroom facilities, ‘go-to adults’ lawsuits. A large team of attorneys state’s direction when he insulted her. on campus and other arrangements.” represent the intervenors, including For the same reasons, the ‘misconduct ACLU national and local offices and of business’ allegation – whichever pro bono attorneys from the law firm constitutional right, privilege, or ILLINOIS – In Students and Parents Mayer Brown LLP in Chicago. immunity that corresponds to – is for Privacy v. U.S. Department of therefore also insufficiently pled.” Education, 2016 U.S. Dist. LEXIS Consequently, the complaint was 77728, 2016 WL 3269001 (N.D. Ill.), U.S. INDIANA – In a state where there is no dismissed for failure to state a claim, District Judge Jorge L. Alonso granted a law against a business discriminating and the request to proceed without motion on June 15 to allow the Illinois against a transgender person because of paying a filing fee was denied.

Summer 2016 LGBT Law Notes 291 CIVIL LITIGATION

LOUISIANA – Granting summary allegations were insufficient to put into Employment Opportunity Commission judgment to the employer, U.S. District play a “hostile environment” claim on behalf of a lesbian victim of Judge Susie Morgan ruled in White v. based on one equivocal incident. employment discrimination. After its Rouses Enterprises LLC, 2016 WL ground-breaking ruling last July 15 in 3127232, 2016 U.S. Dist. LEXIS 72740 Baldwin v. Foxx, the EEOC has added (E.D. La., June 3, 2016), that a male MARYLAND – The Equal Employment to its litigation priorities engaging employee’s Title VII claims of quid Opportunity Commission (EEOC) in affirmative litigation to establish pro quo sexual harassment, hostile announced a favorable settlement of that sexual orientation discrimination environment, and retaliation, levelled one of its first lawsuits asserting that claims can be brought under Title VII. against a gay supervisor, were not an employer violated Title VII’s ban on The ultimate goal is to achieve binding supported by the summary judgment sex discrimination by discriminating appellate precedents, and the agency has record before the court. Marcus against a person because of his sexual amicus briefs on file in pending appeals White was employed as a butcher orientation. EEOC v. Pallet Companies, in the 2nd and 7th Circuits in cases at defendant’s Metairie, Louisiana, Civ. Action No. 1:16-cv-00595-CCB where gay plaintiffs suffered dismissals grocery store from April 23, 2012, until (D. Md., Consent Decree filed June of Title VII suits because of adverse he was discharged on September 15, 23, 2016). A BNA Daily Labor Report appellate precedents in those circuits. 2014. White claimed that a few days account of the settlement indicated Under a consent decree signed by Judge prior to his discharge he encountered that the proposed Consent Decree was Blake on June 28, 2016, the employer his gay supervisor in the restroom subject to approval by District Judge will pay complainant Yolanda Boone and was propositioned for sex, which Catherine C. Blake. The settlement $7,200 in back-pay and $175,000 in he angrily declined. He alleged that requires the employer to pay $182,000 to damages, and will contribute $20,000 to in order to legitimate the subsequent Yolanda Boone, the lesbian complainant Human Rights Campaign. The company discharge his supervisor schemed with who claimed she was harassed due to will also retain an expert on LGBT others at the store to frame him on a her sexual orientation and discharged issues to develop a training program, theft of merchandise charge. The court in retaliation for complaining to provide a toll-free hotline number for found that White’s factual allegations management. The settlement also employee complaints, and provide a fell short of what would be required requires the company to donate letter of recommendation for Boone, to withstand summary judgment; the $20,000 to Human Rights Campaign to who is seeking new employment. In supervisor’s statement in the restroom develop an employee training program, a statement released in response to did not constitute a clear quid pro quo including a module on LGBT workplace approval of the settlement, the company statement (“So, how bad you want that issues. The training would have to said that is decision to settle rather raise?” with no explicit mention of be provided to employees at all the than litigate a challenge to the EEOC’s a sexual demand), there were plenty company’s facilities in its North Region, jurisdiction reflects a commitment by of factual allegations in the record which covers Maryland, New Jersey, the company to its LGBT employees, documenting the charge that White had Maine, Massachusetts and Virginia. and that it offered to make the donation stolen groceries, that this was brought to The employer agrees to post workplace to HRC as part of the settlement. Reuters light by a co-worker who knew nothing notices concerning the company’s Legal, June 29. about the alleged sexual solicitation, responsibilities under Title VII, that the decision to discharge White including making personnel decisions was made by higher-level managers “without regard” to an individual’s NEVADA – The widow of Tommy “The who were also unaware of the alleged sexual orientation, and to provide Duke” David Morrison, former world sexual solicitation, and that the gay employees copies of the company’s anti- heavyweight boxing champion who supervisor was merely a conduit for discrimination policy with a description was disqualified from boxing allegedly communicating the discharge decision of how and where to report violations. because of an inaccurate HIV test result, to White. The supervisor denied making suffered a setback in her suit against the any sexual solicitation, alleging that testing laboratory and other defendants White had misconstrued his statement, MARYLAND – U.S. District Judge on June 23 when U.S. Magistrate Judge and White’s credibility was impaired Catherine Blake (D. Md.) has approved a Peggy A. Leen granted Defendant’s by his failure to complain about the settlement agreement in EEOC v. Pallet motion to strike expert report and exclude alleged solicitation or to mention it to Companies, No. 16-00595, the first testimony from Dr. Henry Soloway, anybody until after he was discharged. sexual orientation discrimination case whom Patricia Morrison claimed to Judge Morgan also found that White’s under Title VII initiated by the Equal have retained as her expert witness in

292 LGBT Law Notes Summer 2016 CIVIL LITIGATION the case. Morrison v. Quest Diagnostics, Soloway to appear for a deposition, six months after his claim accrued, as 2016 WL 3475432 (D. Nevada). Plaintiff finding that “the court has no authority required by his at-will employment alleges that her husband was informed to compel a witness to serve as an contract as evidenced by the written job shortly before the first of a series of involuntary expert witness for a party, application he had signed. The plaintiff scheduled heavyweight bouts that he or to provide uncompensated expert claimed that he had not understood had tested HIV-positive and would not opinions.” (Morrison had claimed that the meaning of the terms “statute be allowed to fight. According to the Soloway offered to provide his expertise of limitations” and “waive” on the complaint, this false diagnosis – not pro bono.) Thus, the motion to strike application form, but the lower courts discovered to be false until an unrelated was granted, possibly putting a practical noted that he had signed a statement medical procedure was performed end to Morrison’s case. that he had read and understood the several years later – “led to a downward application, and rejected his public spiral of Tommy’s life and eventually policy claim. Because the Supreme what was likely his early death.” In her NEW JERSEY – Ruling unanimously Court found the public policy analysis initial designation of expert witnesses, in Rodriguez v. Raymours Furniture sufficient to decide the case, it did Morrison disclosed Dr. Soloway as Company, 2016 WL 3263896 (June not have to address the plaintiff’s her expert, providing an affidavit and 15, 2016), the New Jersey Supreme unconscionability and adhesion contract CV, and sought identification of other Court held that an employer’s attempt arguments. medical personnel who had in any way to contractually require employees to treated Tommy, reviewed his medical accept a shorter statute of limitations records, or “undertaken any diagnostic than that provided by the N.J. Law NEW YORK – The New York City or treatment procedures.” Quest moved Against Discrimination (which Council passed Local Law 40 in 2003, to strike Soloway as an expert for failure prohibits, inter alia, discrimination providing that city police may not to comply strictly with a requirement because of sexual orientation or gender engage in “racial or ethnic profiling,” under the rules to file a detailed expert identity) is unenforceable as a violation defined as an act “that relies on race, report laying out the testimony he of public policy. The legislature’s ethnicity, religion or national origin as was prepared to give. Opposing the judgment that individuals alleging the determinative factor in initiating motion, Morrison stated her belief that unlawful discrimination should have law enforcement action against an Soloway “may have been harassed, up to two years to file their claims individual, rather than an individual’s threatened, silenced, intimidated, or is supports the important public purpose behavior or other information or ‘suffering from fear of the unknown,’” of protecting equal opportunity in circumstances that links a person or as a result of which he had disavowed employment, wrote Justice LaVecchia persons of a particular race, ethnicity, being an expert in the case. The court’s for the court, and the six-month religion or national origin to suspected discussion of the twists and turns the limitation that the employer sought to unlawful activity.” Concerned that this case has taken is too lengthy to be enforce in this disability discrimination law was ineffective, the Council acted summarized here, but culminates in an case would undermine that public policy. again in 2013 and passed Local Law 71, itemization of things that are required The plaintiff, a delivery driver, suffered which expanded the list of protected to be in an expert report but are not a work-related knee injury and was laid characteristics in the anti-profiling included in Soloway’s affidavit. Judge off two days after he reported back for provision to include “actual or perceived Leen found that Soloway’s affidavit work after recovering from his injury. race, national origin, color, creed, age, was not sufficient to meet the detailed The employer claimed he was let go in alienage or citizenship status, gender, expert report requirements. “Plaintiff’s a reduction-in-force, but the employee sexual orientation, disability, housing opposition does not address these claimed that less senior people than status.” The new measure added a private deficiencies or request additional time him had been retained and asserted that right of action limited to injunctive to cure the deficiencies,” she wrote. the lay-off was also retaliatory because and declaratory relief and the award Indeed, plaintiff indicated that Soloway he had sought and obtained workers of attorneys’ fees and expert fees to “has broken off communication with compensation benefits for his injury. prevailing parties. This law took effect her.” Morrison’s counsel had told Quest’s The employer got the case dismissed November 20, 2013. The Patrolmen’s counsel to contact Soloway directly to by the Superior Court, affirmed by the Benevolent Association, the police set up a deposition, but when contacted Appellate Division, on the argument officers’ union, filed suit challenging Soloway denied being a retained expert that the employee had waived his right the validity of the law. On June 23, for Morrison. Leen rejected Morrison’s to assert a discrimination claim against a unanimous panel of the New York suggestion that the court compel the company by filing it more than Appellate Division, 1st Department,

Summer 2016 LGBT Law Notes 293 CIVIL LITIGATION ruled in Patrolmen’s Benevolent appropriate modern precedents (as to Dist. LEXIS 88399 (E.D.N.Y., July 6, Association v. City of New York, 2016 which see the article above about the 2016). Matthew Nadolecki, a special N.Y. App. Div. LEXIS 4910, 2016 NY Maryland Court of Appeals’ recent education teacher formerly employed Slip Op 05057, that the state’s Criminal adoption of the “de facto parent” by the District (which spans several Procedure Law does not preempt the doctrine for such cases). On July 8, towns along the south shore of Long local law, citing the following two the Law Journal reported Matter of Island), asserted three claims under 42 reasons: “the two laws occupy different P.R. v. C.B., V-15266-15/16C (Family U.S.C. section 1983, alleging retaliation legislative fields (criminal procedure Ct., Suffolk County, May 26, 2016), for exercise of his 1st Amendment free and antidiscrimination); and second, a typical co-parent dispute in which speech rights, and discrimination and there is no direct conflict between the respondent moved to dismiss on hostile environment claims under the them.” The opinion stated “great respect standing grounds in reliance on Alison Equal Protection Clause of the 14th and appreciation for the important D. and Debra H.. Judge Bernard Cheng Amendment. Judge Shields found that contributions of police officers who observed that in light of the Court the speech for which he was claiming enforce our laws and protect us all daily of Appeals precedents, he could not protection was “employer speech” not at risk to their own personal safety,” find standing based solely on the co- protected by the First Amendment but recognized “the City’s legitimate parent relationship. However, the co- under the precedent of Garcetti v. interest in protecting New Yorkers from parent’s detailed factual allegation that Ceballos, because it involved formally discriminatory law enforcement.” the parent had been neglectful of the filing grievances with his union, and child’s dental health resulting in serious that the various slights directed at him complications (numerous cavities and an (mainly by students) concerning his NEW YORK – Although the New York untreated abscess in the child’s mouth) sexual orientation were not sufficiently Court of Appeals usually attempts to might support an argument that this was severe or pervasive to create a hostile issue decisions relatively promptly after a case in which “parental unfitness” or environment. Furthermore, found oral arguments, the court announced “extraordinary circumstances” could the judge, the school district did take early in July that it would not be issuing justify allowing the “legal stranger” disciplinary action against students rulings in Brooke S.B. v. Elizabeth to seek custody, pursuant to Matter when Nadolecki complained about A.C.C. or Estrellita A. v. Jennifer D. of Bennett v. Jeffreys, 40 N.Y.2d 543 them. Judge Shields recognized that (argued at the beginning of June) before (1976). “The Court must view the “an equal protection claim may be taking its summer recess. These are allegations in the petition in the light stated by alleging facts in support of a cases in which the court was being most favorable to Ms. P.R. and afford plausible claim that plaintiff was treated asked by appellants to reconsider its her the benefit of every inference which differently than others similarly situated, quarter-century-old precedent in Alison could be reasonably drawn,” wrote and that such treatment was motivated D. v. Virginia M., 77 N.Y.2d 651 (1991), the judge. “In this case the petitioner by an intent to discriminate on the basis as more recently reaffirmed in Debra has raised sufficient issues of fact of an impermissible consideration. Such H. v. Janice R., 14 N.Y.3d 576 (2010), regarding the respondent’s care of impermissible considerations include under which unmarried same-sex co- C.R.B. necessitating a hearing in order disparate treatment based upon sexual parents who have not adopted the legal to ascertain whether the allegations orientation.” However, she found that the or adoptive children of their partners do of ‘persistent neglect’ or ‘unfitness’ plaintiff’s factual assertions fell short not have standing to seek visitation after rise to the level of ‘extraordinary in meeting the pleading standard on the partnership breaks up, despite having circumstances.’” The court ordered the equal protection claims. Nadolecki formed a parental bond with the child. counsel to confer on setting up a hearing is represented by Steven A. Morelli of The New York Law Journal commented to determine this issue. Garden City. on July 6, “If the court does not make a ruling when it next convenes, beginning on Aug. 23, for its annual meeting to NEW YORK – U.S. Magistrate Judge NEW YORK – U.S. District Judge Joanna hear appeals over September’s primary Anne Y. Shields has filed a report and Seybert ruled in Carr v. North Shore- elections, the judges are not expected to recommendation to District Judge Long Island Jewish Health Systems, Inc., make a determination until after they Joan M. Azrack suggesting that a 2016 U.S. Dist. LEXIS 81994, 2016 WL resume hearing cases on Sept. 6.” In constitutional discrimination complaint 3527585 (E.D.N.Y., June 23, 2106), that a the meantime, trial courts continue to by a gay public school teacher should be transgender woman who is a member of grapple with the difficulties of deciding dismissed. Nadolecki v. William Floyd the Unitarian Universalist Church and these kinds of cases in the absence of Union Free School District, 2016 U.S. who was working as an unpaid medical

294 LGBT Law Notes Summer 2016 CIVIL LITIGATION assistant extern at the defendant’s motion to dismiss Carr’s separate she determined, there was enough hospital could proceed to discovery on complaint that she was subjected to overlap in the constitutional and her claim that she was discriminatorily unlawful discrimination during the statutory issues to be presented to justify denied employment because of her sex externship. The relevant statutes pertain putting before one judge in one district and religion in violation of Title VII to discrimination within an employment the question whether H.B. 2 violates the and the New York Human Rights Law. relationship, but an unpaid extern is not constitutional rights of transgender Rejecting the defendant’s claim that the considered to be an employee. (Had people, and also whether the state law complaint was “too speculative,” Judge Carr’s externship occurred in a hospital violates the Violence Against Women Seybert wrote that “the relevant inquiry in New York City and more recently, Act, Title VII of the Civil Rights Act, is whether the [complaint] plausibly she could have had a cause of action and Title IX of the Education alleges that ‘plaintiff is a member of a for discrimination because the City Amendments Act, as well as questions protected class, was qualified, suffered has enacted an ordinance extending its raised by the Eastern District plaintiffs an adverse employment action, and anti-discrimination law to externships, challenging the federal government’s has at least minimal support for the but this hospital is located out on Long compliance with the Administrative proposition that the employer was Island.) Procedure Act in adopting its interpretation motivated by discriminatory intent.’” In of the various sex discrimination laws. this case, plaintiff alleged that almost As to whether that should be in the all the externs were offered employment NORTH CAROLINA – On June 29, U.S. Eastern District or the Middle District, upon satisfactory completion of their District Judge Louise Wood Flanagan Judge Flanagan was inclined to give externship, that there were several (E.D.N.C.) issued an order refusing to primacy to the first case filed, Carcano distinct incidents involving remarks consolidate H.B. 2 cases brought by v. McCrory, No. 1:16-CV-236-TDS-JEP or actions by her supervisor indicating state legislative leaders and North (M.D.N.C., filed March 28, 2016), discomfort with her gender and Carolinians for Privacy with an action brought on behalf of private plaintiffs disapproval of her religion, and after a that had been filed by Governor Pat by civil rights groups a few days after specific incident she was informed that McCrory in the Eastern District seeking the legislature passed and Gov. McCrory her externship had been terminated, a declaration that Section 1 of the statute signed the measure. When Gov. even though she had previously been told – limiting access to sex-designated McCrory decided to defy the federal that her performance was satisfactory. multiple use public restrooms to persons government by filing suit against it in The court found that the complaint whose sex as indicated on their birth the Eastern District at the deadline for “provides enough circumstantial certificate is consistent with the sex- responding to a Justice Department evidence of discriminatory intent to designation of the facility – is letter seeking a response to DOJ’s allow Plaintiff’s failure to hire claim to constitutional. At the same time, and on determination that the state was in survive Defendant’s motion. Although her own motion, Judge Flanagan ruled violation of several statutes, the federal much of the conduct described in the that these lawsuits defending the statute government filed its own suit against [complaint] lacks a tangible link to should be transferred to the Middle McCrory in the Middle District, which a discriminatory purpose, Plaintiff District of North Carolina, to be Judge Flanagan’s transfer order now claims that her supervisor made specific considered in tandem with cases fixes as the locus for resolution of the negative comments about her gender on pending there challenging the underlying issues. That still leaves three separate occasions. Specifically, lawfulness of that Section. Most of Governor McCrory’s lawsuit, the most Demers (1) told Plaintiff she could Judge Flanagan’s Order in Berger v. narrowly focused of all those pending, not use the women’s restroom, (2) United States Department of Justice, dangling by itself in the Eastern District refused to allow her to participate in an 2016 U.S. Dist. LEXIS 84307, 2016 WL . . . Sorting this all out is a procedural examination, stating ‘only females are 3620752, is devoted to reciting the nightmare. Anybody looking for a allowed beyond this point’; and (3) told complex history leading up to the chronological history of the litigation Plaintiff that Jesus does not recognize decision of the motion, including the events leading up to the present will her religion, and told others that ‘he- filings of cases by Governor McCrory find it in Judge Flanagan’s meticulously shes. . . and the gays will needs to answer on May 9 and the federal government on constructed Order. Conveniently to Jesus some day.’ Moreover, Plaintiff May 10 in different districts, and enough, also on June 29, U.S. District was terminated via email on the same subsequent consolidation and intervention Judge Thomas D. Schroeder filed an day Demers made her last comments motions, and specifying the different order in United States v. North Carolina, about Plaintiffs gender and religion.” legal theories raised for and against 2016 U.S. Dist. LEXIS 84788, 2016 WL However, the court granted defendant’s H.B. 2 in the different cases. Ultimately, 3626386 (M.D. N.C.), granting a motion

Summer 2016 LGBT Law Notes 295 CIVIL LITIGATION by the legislative plaintiffs in Berger to en banc denied (June 1), in which the had refused to defend that state’s anti- intervene permissively in the case Circuit held that the Education gay marriage ban and thus could not be brought against the state by the Justice Department’s interpretation of Title IX counted on to give a vigorous defense to Department, having previously granted to apply to gender identity discrimination the law. Interestingly, even Governor a motion allowing them to intervene as claims should be deferred to by the McCrory, champion of H.B.2, had co-defendants in the private action federal courts as a reasonable vetoed S.B. 2 when it first passed the brought against state officials by the interpretation of ambiguous statutory legislature due to doubts about its ACLU & Lambda. See Carcano v. and regulatory language. The G.G. constitutionality. Before S.B. 2 was McCrory, 2016 U.S. Dist. LEXIS 73136, court noted and relied up Title VII passed, Cooper had said that he would 2016 WL 3167180 (M.D.N.C., June 6, precedents on gender identity veto it if he were governor, asserting 2016). Noting the overlap in issues and discrimination to reach this result, and that it was an unnecessary law. arguments between the cases and the observed that several different circuit Magistrate Howell said that the Attorney extent to which they have gotten under courts have now found that gender General’s office was “aggressively way, Judge Schroeder concluded that identity claims can be asserted under a defending” the law, and the legislative allowing intervention of these plaintiffs variety of federal sex discrimination leaders failed to show that their interests would not “significantly complicate the statutes. The brief also notes that were not adequately represented. He did proceedings or unduly expand the scope Congress has amended VAWA expressly say that he would reconsider this motion of any discovery in this case” and to provide protection against gender if “the state no longer intends to defend “should not significantly delay identity discrimination by programs the constitutionality” of the law. A proceedings in this case.” Judge receiving federal law enforcement motion to dismiss the lawsuit is pending Flanagan mentioned in her order that a assistant under VAWA, such as co- before District Judge Max Cogburn, preliminary injunction motion had defendant North Carolina Department who has scheduled argument on the already been briefed in the Carcano of Public Safety. The motion is pending motion for August 8. Raleigh News case, pending before Judge Schroeder. before U.S. District Judge Thomas D. Observer, July 8. Judge Schroeder’s decision on the Schroeder, who, as noted above, has preliminary injunction motion could granted a motion by state legislative ultimately prove outcome-dispositive leaders to intervene as co-defendants in NORTH CAROLINA – Advancing its for all these cases, depending how many the case. An amicus brief in support of affirmative litigation strategy under of the various legal theories he considers the Justice Department’s motion was Title VII, the Equal Employment in determining whether to grant pre- filed by Human Rights Campaign with Opportunity Commission announced trial relief and whether the state 68 corporate co-sponsors, authored by on July 6 that it had filed a lawsuit in immediately seeks appellate review former Solicitor General Ted Olson, federal district court against Bojangles from any adverse ruling. He scheduled a who was co-counsel in Perry v. Restaurants on behalf of Jonathan hearing on the motion for August 1, Schwarzenegger, the litigation that Wolfe, a transgender woman who 2016. * * * On July 5, the Justice brought marriage equality back to claims she was subjected to a hostile Department filed a motion for California by successfully challenging environment at the chain’s Fayetteville preliminary injunction against the constitutionality of Proposition 8. store because of her gender identity, and enforcement of the bathroom provision * * * On July 7, U.S. Magistrate Judge then suffered retaliation for complaining of H.B. 2 in United States v. State of Dennis Howell denied a motion by state about it. A company spokesperson North Carolina, Case No. 1:16-cv-425 Republican legislative leaders to responded that Wolfe was discharged (M.D.N.C.), and requested oral intervene as defenders in a case in which because of insubordination and other argument on the motion, which was some same-sex couples are challenging misconduct, not her gender identity. accompanied by a 68-page brief setting the constitutionality of S.B.3, a North The company is unlikely to be able to out in full the Obama Administration’s Carolina law passed in 2014 allowing get the case dismissed on an argument position that the bathroom provisions local magistrates to recuse themselves that Title VII does not extend to gender violate Title VII of the Civil Rights Act, from performing same-sex marriages identity discrimination, in light of the Title IX of the Education Amendments under a procedure which also requires 4th Circuit’s G.G. v. Gloucester County Act, and the Violence Against Women them not to perform other marriages for School District decision, which took Act (VAWA). The brief relies heavily on a defined period of time. The rejected note of Title VII precedents from other the 4th Circuit’s ruling in G.G. v. intervenors claimed that their jurisdictions in holding that a district Gloucester County School Board, 2016 intervention was necessary because the court within the circuit should have WL 1567467 (April 19, 2016), rehearing state’s Attorney General, Roy Cooper, deferred to the Education Department’s

296 LGBT Law Notes Summer 2016 CIVIL LITIGATION determination that gender identity that disclosure of her identity will result district and school level administrators discrimination is covered by Title in an social stigma in some quarters on the district’s Title IX obligations IX’s ban on sex discrimination by of a type which may, and should, be to transgender students. U.S. Official educational institutions. avoided. Further, while the issues in this News, June 23. litigation present matters which may garner some public interest, that public OHIO – The Highland School District interest can be met without the necessity TENNESSEE – 4th Circuit Court Judge filed a lawsuit on June 12 in U.S. District of disclosure of the plaintiff’s identity. Greg McMillan has ruled that a lesbian Court in Columbus against federal Therefore, all of these considerations spouse has no legal relationship with the education department officials, seeking strongly favor granting Jones’ request child born to her spouse and thus cannot a declaration that it is not required under to proceed under a pseudonym. Indeed, seek custody upon a divorce, but has Title IX to allow a transgender grade the presence of these factors favoring stayed his ruling to allow the plaintiff school student to use girls’ restrooms. granting this request are undisputed by to seek review from the state court of The district claims that it stands to lose any defendant. Instead, one defendant appeals, reported the Knoxville News more than $1 million in federal money, simply insists that Jones did not Sentinel on June 24. Erica Witt and and that the Department of Education sufficiently protect her privacy and Sabrina Witt married in the District of had threatened an enforcement action on identity during the course of the state Columbia in April 2014, bought a home behalf of the student unless the district agency proceedings to warrant granting in Knoxville and decided to have a child met federal demands by June 28. Alliance her request in this case. We disagree. together through donor insemination Defending Freedom (surprised?) In our view Jones has persuasively with an anonymous donor. The child was represents the school district, claiming demonstrated that she repeatedly sought born to Sabrina in January 2015. At the that the threat is an illegal attempt leave to proceed under a pseudonym time Tennessee did not recognize same- by the Obama Administration to during these state agency proceedings. sex marriages contracted out of state, so “rewrite” federal law. (Never mind In fact, we note that such leave to proceed Erica’s name was not listed on the birth that federal courts, including the 6th under a pseudonym was granted by the certificate. In February 2016 Sabrina Circuit Court of Appeals, which has state agency on July 1, 2016. (Doc. 12.) filed for divorce and opposed Erica’s appellate jurisdiction over federal cases Therefore, we also find that the plaintiff standing to seek custody or visitation from Ohio, have been recognizing sex has made continuing efforts to protect with the child on the ground that Erica discrimination claims by transgender her identity and privacy in this litigation, and the child had no legal relationship litigants for a decade now.) Columbus and in state agency proceedings. Having under Tennessee law. Tennessee has the Dispatch, June 12. found that the prerequisites set by law usual presumption that when a married for proceeding under a pseudonym are woman bears a child, her husband is met in this case, the motion to proceed deemed the legal parent of the child. PENNSYLVANIA – Should an HIV- under a pseudonym is granted.” Erica argued that under Obergefell the positive plaintiff be allowed to proceed court is required to accord her the same on a discrimination lawsuit using a rights as a husband, and the court should pseudonym? Yes, ruled U.S. Magistrate SOUTH CAROLINA – The U.S. read the statute as being gender neutral. Judge Martin C. Carlson in Bonnie Department of Education found that Sabrina’s attorney contended, based Jones v. OSS Orthopedic Hospital, 2016 Dorchester County School District Two on the wording of the statute, that this WL 3683422 (M.D. Pa., July 12, 2016). violated Title IX by discriminating presumption applies only to husbands, The plaintiff, who has adopted “Bonnie against a transgender elementary school and Judge McMillan agreed, stating that Jones” as her proposed pseudonym, student. Negotiations ensued, and on it was not up to the court to enact “social has alleged that she has been denied June 23 the Department’s Office for policy” and, he said, “I believe as a trial equal access to certain facilities of the Civil Rights announced a voluntary court I am not to plow new ground, but to defendant because of her HIV status. resolution agreement, under which the apply precedent and the law.” However, The judge noted that many other courts district will provide the transgender girl he said that Erica could possibly seek have allowed HIV-positive plaintiffs to with access to girls’ bathrooms at her visitation as a “stepparent.” Sabrina conceal their identification, observing: elementary school and take other steps is represented by John Haber. Erica “At the outset, consistent with those to facilitate the student’s enjoyment is represented by Virginia Schwamm. cases that have considered similar claims of equal educational opportunity, See also Memphis Commercial Appeal, by HIV positive litigants, we find that including revising its policies and June 25. Jones has made a substantial showing procedures and providing training to TENNESSEE – B l e u C o p a s o f A n d e r s o n

Summer 2016 LGBT Law Notes 297 CIVIL LITIGATION

County, Tennessee, and Caleb Laieski before the Supreme Court.) The firm Administration’s administrative actions of Virginia, filed a complaint on June announced on June 24 that it would because of his ruling enjoining the 5 in the Anderson County Chancery donate $100,000 to the National Center Administration’s policy protecting non- Court against Governor Bill Haslam, for Lesbian Rights, and use the rest of citizen parents of U.S.-born children seeking a declaratory judgment that the fee award to underwrite the firm’s against deportation. The complaint a recently-enacted Tennessee statute pro bono activities. NCLR Legal argues that when the Administration allowing mental health therapists to Director Shannon Minter said that this adopted its interpretation of Title refuse treatment to patients because was the single largest donation that the VII and Title IX, it was violating the of the therapists’ religious or personal organization had ever received from a Administrative Procedure Act because moral beliefs is unconstitutional. law firm. In reporting about the donation it was adopting a new rule of law Copas v. Haslam (Tenn., Anderson Co. on July 5, the National Law Journal without going through the procedure Chancery Ct., filed June 5, 2016). The noted that other firms that received fee required for adopting regulations. complaint alleges that the law singles out awards in marriage equality litigation The brief in support of the motion LGBT individuals for “discriminatory had also made donations. Perkins Coie, conveniently ignores the growing body treatment,” as “There is no other group for example, which helped to represent of federal case law supporting the view which could conceivably be the target same-sex marriage plaintiffs in Arizona that sex discrimination includes gender of the statute,” even though it does not and Oregon, made donations out of the identity discrimination, almost all of expressly mention sexual orientation, fee awards to Lambda Legal and the which predates the Administration’s gender identity, or homosexuality. ACLU. embrace of this view. The brief also The statute says that counselors disingenuously contends that the and therapists whose “sincerely Administration’s position is that any held principles” prevent them from TEXAS – Plaintiffs in State of Texas v. person of any biological sex is free at any providing services may refrain from United States of America, Civ. Action time to use any restroom they want to, doing so without adverse consequences. No. 7:16-cv-00054-O (N.D. Tex.), which regardless of its designation as restricted It does provide that services may not challenges the Obama Administration’s to males or females, which of course is be withheld in emergency situations, interpretation of “sex discrimination” not the position of the Administration. and that referrals to providers under Title VII and Title IX to include As such, the plaintiffs argue from the without such objections should be gender identity discrimination, filed a premise that gender identity is not real made. Governor Haslam stated upon motion for a preliminary injunction on and that everybody is and remains the signing the bill that professionals July 6, seeking to forestall enforcement sex recorded in state records when should have a right to refrain from of Title VII and Title IX nationwide they were born, contrary to a growing providing services to people whose against employers subject to Title body of professional opinion and “personal beliefs” don’t match their VII and schools that receive federal judicial rulings. While this is a position own. Knoxville News-Sentinel, June 8. financial assistance, subjecting supported by some early cases under The American Counseling Association themselves to coverage under Title Title VII and state sex discrimination disagrees, providing in its ethics code IX, until a final determination can be laws, it is not supported by more recent that counselors should set aside their made whether the statutes reach the case law, most notably the 4th Circuit’s personal beliefs when it comes to issue of bathroom and locker-room decision in G.G. v. Gloucester County rendering professional services, and access for transgender individuals. School Board, 2016 WL 1567467 the organization has announced it will Texas picked up a few more states after (April 19, 2016), which held that the move a national convention previously filing the case, so now it is brought on Administration’s interpretation of Title scheduled to be held in Nashville next behalf of Alabama, Wisconsin, West IX was reasonable, not inconsistent with year to a different location. Virginia, Tennessee, Arizona, Maine, the state and existing regulations, and Oklahoma, Louisiana, Utah, Georgia, entitled to deference from the federal Mississippi, and Kentucky, although courts. The EEOC’s ruling on point TENNESSEE – The law firm Ropes standing is premised on the tiny cites a wide variety of federal appellate & Gray received more than $600,000 Harrold Independent School District, and trial court rulings in support of the from the fee award in the Tennessee which was lured into participating by broader view of the sex discrimination marriage equality litigation, having Texas A.G. Ken Paxton to facilitate his ban. Of course the 4th Circuit’s represented prevailing plaintiffs. (R&G forum shopping before Reed O’Connor, opinion is not binding within the 5th partner Douglas Hallward-Driemeir a district judge who is perceived to Circuit, a notably conservative circuit argued the marriage recognition issue be predisposed against the Obama on employment discrimination issues,

298 LGBT Law Notes Summer 2016 CIVIL LITIGATION and it is possible that a ruling on this evidenced any bias or partiality on the panel issued its earlier decision. motion will generate the kind of circuit his part. Further, no evidence was G.G. v. Gloucester County School split that could capture the attention of introduced regarding Judge Sulak’s District, 2016 WL 3743189. Senior the Supreme Court, especially as the involvement with the LGBT community Judge Davis filed a concurring opinion Gloucester County defendants have or LGBT activist groups, or of his written to refute dissenting Judge Niemeyer’s announced they will file a petition for or oral statements concerning LGBT contention that the panel’s earlier certiorari this summer. * * * Early in rights or his religious views. Stokes’ decision was “unprecedented,” pointing July there were news reports that an speculation that Judge Sulak was biased out that four other circuit courts had additional ten states had joined in a based merely on the fact that he received previously opened that gender identity similar lawsuit, filed in the U.S. District endorsement from LGBT activist groups discrimination was a form of sex Court in Nebraska. The collaborating in an election campaign is not sufficient discrimination. The school district has states are Arkansas, Kansas, Montana, to overcome the presumption of judicial until August 29 to file a cert petition North Dakota, Ohio, South Dakota, impartiality. Further, a reasonable, with the Supreme Court, but it might South Carolina, Wyoming and Michigan. disinterested observer would recognize file a motion with the Supreme Court It seems like that eventually all of the the reality that a judge participating seeking its stay. If the Supreme Court states that lack a legislative prohibition in a political campaign may receive were to grant a stay until it decides on of gender identity discrimination may many endorsements from politically the cert petition, Grimm would not be end up being co-plaintiffs in one or active groups and individuals and that able to use restrooms consistent with his another of the lawsuits contesting the at the same time, a judge is under the gender identity when school beings in Obama Administration’s interpretation ethical obligation to remain impartial.” the fall, since a decision on the petition of Title IX in the context of restroom Furthermore, the record showed that would not be announced until shortly access for transgender students. New in the course of the litigation Judge before the beginning of the Court’s York Times, July 8. Sulak had made rulings both in favor October 2016 Term, at the earliest. and against both parties, further Judge Doumar set the case for trial on undermining any contention of bias. January 31, 2017. The school district’s TEXAS – The 6th District Court of response to the complaint requests a Appeals ruled in In the Interest of jury trial. Newport News Daily Press, E.R.C., a Minor Child, 2016 Tex. App. VIRGINIA – Responding to the 4th July 7 and 12. LEXIS 6231 (June 14, 2016), a bitterly Circuit’s reversal and remand of his prior contested child custody suit, that the decision dismissing a Title IX claim fact that a judge had been endorsed asserted by transgender teen Gavin WASHINGTON – U.S. Magistrate by LGBT political groups was not by Grimm against the Gloucester County Judge John T. Rodgers denied a itself grounds for finding that the judge School District, U.S. District Judge transgender plaintiff’s motion for should be disqualified from hearing a Robert Doumar issued a preliminary summary judgment in her challenge to case because of presumed bias. Wrote injunction on June 23 requiring the a denial of Social Security Disability Justice Jim Moseley for the court: Gloucester schools to allow Grimm to Benefits in Herrington v. Colvin, 2016 “Stokes [the mother] argued at the use restrooms consistent with his gender WL 3579222 (E.D. Wash., June 28, recusal hearing and on appeal that Judge identity pending ultimate disposition 2016). This is a rather complicated Sulak was biased in favor of the lesbian, of the case. Protesting that it would case. The plaintiff, identified female at gay, bisexual, and transgender (LGBT) be filing a petition for certiorari and birth, identifies as male, but is referred community and against Christians. At should not be required to comply with to as “she” throughout the opinion. She the hearing, Stokes introduced evidence an injunction until a final decision on applied for disability benefits when she that Judge Sulak had been endorsed in the merits, the school district filed a was 20 years old and has never worked. his election campaign by two groups motion asking that the injunction be She has a high school education. At her representing the LGBT community stayed, but on July 6 Judge Doumar hearing, she testified to various kinds of and of the endorsement procedures of denied the motion, tersely stating, “This physical pain, claimed that “she hears one of the groups. She also introduced Court is bound by the Judgment of the voices and on average she stays in her evidence consisting of articles written Court of Appeals.” The school district room all day.” “Plaintiff further testified either by or about LGBT activist groups, immediately appealed the denial to the that she would prefer to be male, but that emails to and from Corsbie [the father], 4th Circuit in an “emergency motion.” due to her health, she could not proceed and emails to and from Stokes, none On July 12, the 4th Circuit denied the with any transitional procedures,” wrote of which concerned Judge Sulak or motion, by the same 2-1 vote by which the judge. Later in the opinion, there

Summer 2016 LGBT Law Notes 299 CIVIL LITIGATION is reference to a doctor having advised denial of his petition to “correct” his of them directly involving sexual against hormone therapy because of the court martial record by the Board for misconduct but relating to other offenses plaintiff’s high cholesterol. The doctors Correction of Naval Records. Wilhelm v. charged against him, and he was who testified agreed that the plaintiff has U.S. Department of the Navy, 2016 WL sentenced to dismissal from the Navy. “gender identity disorder” and suffers 3149710, 2016 U.S. Dist. LEXIS 72884 At around that time, the Supreme Court from “depression and anxiety” but did (E.D. Wash., June 3, 2016). The story ruled in Lawrence v. Texas that criminal not directly opine that she was disabled behind this case is complicated. Wilhelm bans against private, consensual adult from working. The occupational expert served with distinction in the Navy from homosexual conduct violated the Due who testified contended that she could 1982 until 1995, when he was released Process Clause, and subsequently, the undertake various kinds of jobs, but her from duty with an honorable discharge. highest military appeals court ruled in attempts to apply for jobs have been Shortly thereafter he figured out that U.S. v. Marcum that sodomy charges unsuccessful, apparently due to her he was gay, but this did not deter him against military personnel “would be lack of education, training, and ability from enlisting in the Naval Reserves, subject to a different analysis than they to present herself as a desirable job intending to keep his homosexuality a had previously.” In essence, the military candidate. She also presented testimony secret. (At the time, the military was courts would only move against those from a clinical social work, who testified operating under the recently-enacted who engaged in conduct that fell outside through two letters, the first of which “don’t ask, don’t tell” policy, under the scope of Lawrence or could be stated that plaintiff “is very isolated and which gay people could serve so long deemed prejudicial to the service. is avoidant of public situations due to her as everybody could pretend they weren’t Wilhelm sought “correction” of his anxiety. She is further restricted due to gay and they didn’t say or do anything military record, but was turned down her social limitations of presenting as a to reveal their homosexuality.) He was by the Naval Board and went to court. young man vs. the female person that she designated a Chief Warrant Officer. Judge Rice pointed out that judicial is.” The social worker said that plaintiff According to Judge Rice’s opinion, review would be quite limited (while perceives herself as unemployable; “Her “However, not long after Wilhelm rejecting the government’s argument negativity as well as her avoidance returned to active duty in February that Wilhelm’s claim was not justiciable), prohibit her from engaging in the 2000 and was assigned to Atsugi, Japan, since the courts grant substantial community at large,” and she concluded it was widely rumored that Wilhelm was deference to the administrative in her second letter, “I do not believe homosexual. Wilhelm told a number decisions of the military on personnel that she is able to present herself in a of inconsequential lies about himself matters, but what really determined the positive light regarding a job interview during this time, primarily to make ruling to dismiss Wilhelm’s case was even if she were invited to do so.” The himself sound more masculine and that he pled guilty to charges that did not ALJ concluded that she was capable reduce suspicion about his sexuality.” relate directly to homosexual conduct. of working and denied her benefits, While Wilhelm was on leave in April The court found it reasonable for the a conclusion that was sustained by 2002 he visited Moscow and engaged Naval Board to omit any mention of the Judge Rodgers, who granted summary in consensual gay sex, leading to a “homosexual” aspect of the case when it judgment to the Commissioner. Judge confrontation with Russian intelligence declined to change Wilhelm’s military Rodgers found that the ALJ had officers who threatened to expose his records. Wilhelm argued that the anti- provided sufficient reasons for finding homosexuality to the Navy unless he gay bias of the military, and particularly the plaintiff not credible concerning agreed to spy for Russia. “Wilhelm of the individuals who investigated his the intensity, persistence, and limiting declined and reported the attempted situation, should count to invalidate effects of her symptoms, although blackmail to the U.S. Embassy.” This his bad conduct discharge, especially conceding that the ALJ may have of course led to an investigation by the in light of Lawrence, Marcum, and the erred in concluding that plaintiff’s Navy, during which Wilhelm eventually repeal of “don’t ask, don’t tell,” but the “self-reports” about her condition were confessed to being gay and engaging in court rejected this argument. “Whether not supported by “objective medical gay sex. He was then charged with 38 or not the Board made the right decision evidence.” specifications of wrongdoing, three of in denying Wilhelm clemency is not the which related to violation of the military focus of a reviewing court under the sodomy ban, the balance relating to a [Administrative Procedure Act],” wrote WASHINGTON – Chief U.S. District wide variety of offenses under military Judge Rice; “rather, the task is merely to Judge Thomas O. Rice granted the law, some seemingly trivial. On April 9, determine whether the Board’s decision, government’s motion to dismiss Mark 2003, he pled guilty at a general court- afforded ‘all due deference,’ contains ‘a C. Wilhelm’s lawsuit challenging the martial to nine specifications, none rational connection between the facts

300 LGBT Law Notes Summer 2016 CIVIL / CRIMINAL LITIGATION found and the choice made.’ Because rights,” according to a June 17 report despite several procedural faults, Lee it is clear based on the allegations in The Mercury News. Judge France should get habeas relief, directing the in the Amended Complaint together agreed with the argument by Deputy state of Michigan to appoint counsel for with the attachments thereto that the Public Defender Carlie Ware, who had him so that he can file an appeal as of Board did just that, Wilhelm has not argued for dismissal of charges on the right to the Michigan Court of Appeals, stated an actionable claim.” Wilhelm ground that the police had specifically contending that his conviction should is represented by Dale F. Saran of targeted gay men for their enforcement be vacated for denial of his right to self- Oceanside, California and Matthew Z. action. Ruled Franco: “The claim that representation. Lee v. Haas, 2016 U.S. Crotty of Spokane, Washington. If he this investigative focus was driven by Dist. LEXIS 82194, 2016 WL 3437599 cares to persist, he can appeal this to the complaints is minimally supported by (E.D. Mich., June 24, 2016). 9th Circuit, but it doesn’t look good . . . the evidence presented, especially as it relates to the park. Unpopular groups have too often been made to bear the MISSISSIPPI – Jackson County brunt of discriminatory prosecution (Mississippi) Circuit Judge Robert CRIMINAL LITIGATION NOTES or selective enforcement.” The article Krebs sentenced Josh Vallum to life noted that in May a Los Angeles County in prison on July 12 after taking his U.S. COURT OF APPEALS, 6TH judge had thrown out similar charges guilty plea in the beating death of CIRCUIT – On July 13 the 6th Circuit involving Long Beach police, and that Mercedes Williamson, a transgender issued a decision dismissing Rowan police in several southern California woman. The U.S. Justice Department County, Kentucky, Clerk Kim Davis’s communities have stopped conducting is considering whether to lodge federal appeal from the U.S. District Court’s such sting operations because of judicial hate crime charges against Vallum, ruling against her on the question disapproval of the tactics. who was scheduled to go to trial just a whether she was violating the law by week before he agreed to plead guilty. refusing to issue marriage licenses to Vallum had told law enforcement same-sex couples based on her personal MICHIGAN – D u r i ng h i s t r ia l on ch a rge s authorities that he killed Williamson religious objection to same-sex that he got straight men too drunk to after he reached between her legs and marriages. However, at the same time consent and then performed oral sex realized she had a penis, but this was the court vacated the district court’s on them, Larry Lee was dissatisfied not consistent with other witnesses who preliminary injunction on grounds of with appointed defense counsel and said that Williamson and Vallum had mootness, since Kentucky has modified wrote letters to the trial judge asking dated and had an active sex life and the law governing marriage licenses to be able to defend himself or to have that Vallum knew that Williamson was in such a way that Davis no longer new counsel assigned. He alleges that transgender and considered them to have has objections to issuing them, as the the trial judge refused to consider his a “homosexual” relationship, which he names of county clerks have been requests and steamrollered him into was trying to keep secret from the gang removed from the forms. However, the continuing with his original appointed he ran with. AP National News, July 13. 6th Circuit held that the district court’s counsel. Lee was convicted despite his September 3, 2015, order holding Davis insistence that in both cases charged in contempt of course “does not meet against him the straight men had NEVADA – The Court of Appeals of the requirements for vacatur” under flirted with him at parties and then had Nevada affirmed the jury conviction the court’s precedents, and thus is consented to have sex with him, only of Rodger O. Evans on charges of “not vacated.” The contempt judgment later repenting of the experience and “exploitation of elderly over $5,000” stands. Miller v. Davis, Nos. 15-5880 contacting law enforcement to complaint in Evans v. State of Nevada, 2016 WL & 5-5978. against him. Appellate counsel was 3586687 (June 20, 2016). On appeal appointed for him, but he claims that Evans argued, among other things, appellate counsel provided ineffective that the trial judge erred in excluding CALIFORNIA – Santa Clara County representation by failing to raise the evidence as to the victim’s sexual Superior Court Judge Jose S. Franco violation of his 6th Amendment right to orientation. Evans’ theory was that the has ruled that police sting operations self-representation as part of his direct fact the victim was a gay man without at Columbus Park focused on the men’s appeal. In this habeas proceeding, after children was relevant to Evans’ argument restroom facility there constituted reciting the complicated procedural that the money to him was a gift typical “selective enforcement in violation history of the case, U.S. District Judge of the victim’s generosity to friends. of the suspects’ equal protection Robert H. Cleland concluded that Wrote the court: “Evans contends that

Summer 2016 LGBT Law Notes 301 CRIMINAL LITIGATION the victim’s sexual orientation is relevant by a police officer, was convicted on tempt the alleged minor towards illegal to show why the victim does not have five counts of criminal possession sexual activity as demonstrated by the children of his own and why he would of a weapon, one count of menacing facts [in cases the government was give such generous gifts to Evans, rather the police officer who apprehended citing]. The proof presented by the than to his own family. But one does him, and one count of menacing a gay government is a very rare case where not need to be of a particular sexual bartender in a West Village restaurant the defendant may have had an interest orientation in order not to have children; prior to his confrontation with Carson in performing an illegal sexual activity many people do not have children from and Robinson. Morales also had a but did not attempt to persuade, induce, many reasons having nothing to do with prior violent felony conviction on his entice or coerce the alleged minor. Even their sexual orientation or preferences. record, and Justice Bartley rejected viewing the evidence in the light most Furthermore,” continued the court, his argument that it should not be favorable to the government and in the “one’s sexual orientation has nothing to taken into account in determining context of the totality of the evidence, a do with one’s generosity or stinginess the sentence in this case. The murder jury could not find beyond a reasonable toward others; the victim’s sexual of Carson in the heart of the heavily- doubt that Mahannah had the requisite orientation has no discernible relation gay neighborhood shocked the NYC intent to satisfy the second element of to whether he did or did not voluntarily LGBT community, leading to vigils Section 2422(b), to knowingly attempt give large amounts of money to Evans and protests. Morales, who insisted the to persuade, induce, entire or coerce or to any other person.” Thus, it was not shooting was an “accident,” represented a minor.” He also found that the relevant and the trial judge correctly himself at trial and announced he would government filed to offer “sufficient excluded the evidence. What the court appeal the convictions and sentence. evidence that Mahannah took a does not say but seems implicit was that GayCityNews.com, June 14. substantial step toward the commission the court suspected Evans’ aim was to of the crime.” Mahannah testified that get the jury to sympathize with him and he set a meeting with the “minor” to against a gay victim. Didn’t work . . . NEW YORK – U.S. District Judge David “advise the minor that what he was doing N. Hurd granted a motion for acquittal was wrong and could result in a sexually at the end of the government’s case transmitted disease.” Concluded Judge NEW YORK – On June 14 New York against Michael J. Mahannah, who Hurd, “Once the suggestive influence County Supreme Court Justice A. Kirke was charged with attempting to induce of the investigator was removed, there is Bartley sentenced Elliot Morales to a young boy into having sex with him. no evidence that the defendant had any 40-years-to-life after a jury convicted United States v. Mahannah, 2016 WL intent to persuade a minor or engaged Morales of second-degree murder as 3675569 (N.D.N.Y., June 22, 2016). It in the proposed sexual activity.” Judge a hate crime because of the victim’s is embarrassing to read Judge Hurd’s Hurd noted the lack of any physical sexual orientation in the shooting death summary of the testimony. It seems that evidence “to counter Mahannah’s of Mark Carson in the West Village, a government agent, one Investigator stated reason for meeting with the Manhattan, in May 2013. People v. Schmitter, was out trolling to arrest minor. After text conservations with Morales. Morales shot Carson in the gay men and started texting Mahannah, a very persuasive, very professional head while mouthing homophobic posing as a sex-starved gay boy eager to investigator, riding a bicycle to meet epithets. Carson and his friend Danny find an adult man with whom to have the boy to advise him that what he was Robinson had been walking together sex. Schmitter was persistent, even doing was wrong is not a substantial on 6th Avenue near 8th Street when when Mahannah dismissed him as too step toward the commission of the Morales encountered the two men and young and said he had previously had alleged crime.” Thus, the prosecution started shouting at them, pursued them, a relationship with somebody who was fell apart at the end of the government’s and gunned down Carson. Morales HIV positive, but finally Mahannah case, and the charges against Mahannah claimed he acted in self-defense agreed to an assignation and was were dismissed by the court. because he thought Carson was armed arrested. All the “inducement” here and prepared to shoot him. (Carson seemed to come from the government was not armed.) Morales also argued agent. Wrote Hurd, “The terms persuade, WASHINGTON – Musab Mohammed he could not be convicted of a hate induce, entice and coerce are not defined Masmari was sentenced to 120 months crime because he identified as bisexual. in the statute and ‘are words of common in federal prison for attempting In addition to the murder conviction, usage that have plain and ordinary to set fire to a gay club in Seattle, Morales, who fled the scene of the meanings.’ Given such meanings, “Neighbors,” on New Year’s Eve 2013. shooting but was quickly apprehended Mahannah did not urge, influence or Masmari was subsequently spotted and

302 LGBT Law Notes Summer 2016 CRIMINAL / REFUGEE LITIGATION identified from a security video and caused, an amount that the court ordered not met that burden. As to Silva’s was apprehended when he traveled to Masmari to pay as restitution.) It was other argument, the court observed the airport, having purchased a ticket also noted that the government lived that “the record contains conflicting to fly to Turkey. He was represented up to its promise, but advocating a 60 evidence concerning the prevalence of by counsel, who advised him to take month sentence to the court. Masmari, violence against gay men in Angola, a plea with the understanding that the now an inmate, represented himself pro and the task of resolving conflicts government would recommend the se on the motion. in the record evidence is ‘largely mandatory minimum sentence of 60 within the discretion of the agency.’ months, which it did. An employee of The 2011 State Department Report Neighbors who was present at the bar notes that gay men in Angola report when the fire was discovered filed a REFUGEE LITIGATION NOTES facing violence and discrimination, victim impact statement and addressed but it does not disclose the extent of the court during sentencing, describing U.S. COURT OF APPEALS, 2ND that violence or its frequency. Silva the impact that a fire set at Seattle’s CIRCUIT – How bad are things for gay submitted an additional article stating “largest and longest running gay club” men in Angola? To judge by the July 6 that homosexuals in Angola do not on a crowded holiday evening had on ruling by a 2nd Circuit panel in Silva v. reveal their sexual orientation for the LGBT community in that city. Thus Lynch, 2016 WL 3621925 (not officially fear of stigma and social exclusion; persuaded, the trial judge, Ricardo S. published), the BIA could plausibly the article also reported on one gay Martinez, sentenced Masmari to double resolve the question against the claims man who had rocks thrown at him.” the mandatory minimum for his offense. of a gay Angolan who argued that But the Department of Homeland On June 15, 2016, Judge Martinez he would be persecuted if forced to Security “submitted two articles, rejected Masmari’s motion to set aside return there, both by his homophobic one of which states that, although or correct the sentence downward to father and by the general population. homosexuality is technically illegal 60 months. Masmari v. U.S., 2016 On March 17, 2015, the Board of in Angola, there are no reports of an U.S. Dist. LEXIS 78820, 2016 WL Immigration Appeals affirmed a 2013 prosecutions for violating the law, and 3780381 (W.D. Wash.). Masmari’s decision by an Immigration Judge that a new proposed law criminalizes main claim was that he suffered from denying Silva’s application for asylum, discrimination based on sexual ineffective assistance of counsel, withholding of removal, and relief orientation. Moreover, the articles because his attorney urged him to under the Convention against Torture. quote an HIV/AIDS activist, as well plead guilty based on the government’s Silva did not allege that he had been as a human rights observer, to the representation that it would seek the harmed in the past, but claimed “that effect that violence against gay men is mandatory minimum sentence but he he would be persecuted in the future uncommon in Angola and that Angola ended up getting sentenced to twice as by his father and by the Angolan is ahead of other African nations with long. Judge Martinez pointed out that population because he is gay.” Wrote respect to the treatment of LGBT even if the government might have had the court as to the former, “the agency individuals.” The court concluded that difficulty proving beyond a reasonable reasonably concluded that there was no it was up to the BIA, not the court, to doubt the “knowing and malicious evidence in the record that the Angolan decide how to resolve this conflicting intent” necessary for conviction government would be unwilling or evidence. These claims are supposed under the statute, in part because unable to prevent Silva’s father from to be assessed based on conditions in Masmari claimed to be inebriated at harming him or punishing his father the country when the applicant left, not the time he set the fire, that was not if he did.” The court dismissed the present conditions. It appears, however, a basis for finding defense counsel’s salience of a letter from Silva’s mother that since 2011 Angola has repealed recommendation defective. The court stating “that she was forced to flee express criminal penalties for gay sex found that Masmari was not entitled to to the Congo to avoid Silva’s father,” and it is at least arguable that more raise a defense of voluntary intoxication because it “was from an interested recent legislative action might provide because this was a general intent crime, witness who was not subject to cross- some protection against discrimination and that he did not dispute that despite examination.” The burden was on Silva because of sexual orientation in that his intoxication he had the requisite to show that his father was likely to country. That is, a recent on-line search intent to set the fire, intending to cause harm him because of his homosexual for information tends to confirm the damage to property and persons. (One orientation if he was returned to suggestion that conditions for gay consequence of the fire was more than Angola, and the court found that the people have been improving in Angola. $87,000 in costs to fix up the damage it agency could conclude Silva had U.S. COURT OF APPEALS, 2ND

Summer 2016 LGBT Law Notes 303 REFUGEE LITIGATION

CIRCUIT – A notably unsympathetic persecution, “In this case, [petitioner] the petitioner would have good reason 2nd Circuit panel rejected the did not allege any individualized fear to fear persecution were he deported contention that hundreds of murders of persecution (other than his claims to Brazil now. He was raped more than of gay men each year in Brazil would of past persecution discussed above); once as a teenager (the court does not support a claim that a gay Brazilian accordingly, to prove his entitlement mention by whom) but that does not would have the necessary reasonable to relief, he had to show a pattern or constitute, in the eyes of the court, fear of persecution sufficient to justify practice of persecuting or torturing gay “persecution,” because he failed to withholding of removal from the United men in Brazil. His country conditions allege that he was raped because he was States in Feitosa v. Lynch, 2016 WL evidence consisted of two newspaper gay? He was thrown out by his family, 3190549, 2016 U.S. App. LEXIS 9990 articles and one report. This evidence but that’s not persecution because he (June 2, 2016). On December 31, 2014, revealed numerous troubling incidents found a place to stay and a job until he the Board of Immigration Appeals of violence towards gay men in Brazil. fled to the U.S. Hundreds of gay men affirmed an Immigration Judge’s ruling However, as the agency concluded, the are murdered every year in Brazil, a denying the petitioner’s application for evidence of approximately 188 killings situation that has become worse since asylum, withholding of removal and of gay men based on their sexual 2012 and that the government seems to relief under the Convention against orientation in 2012 is not enough to be powerless or unwilling to counter, Torture. The court’s summary order establish, by a clear probability, that but petitioner has no reasonable fear of rejecting the petitioner’s appeal, the harm inflicted on gay men in Brazil persecution? This sounds like a system assuming the parties’ familiarity with is sufficiently ‘systematic or pervasive designed to evade the facts. The court “the underlying facts and procedural as to amount to a pattern or practice of also rejected the petitioner’s argument history in this case,” is skimpy on persecution.’” Wait a minute: hundreds that the Immigration Judge was biased details, not revealing how the petitioner of murders in one year does not “amount because he failed to expressly deal came to the United States or the to a pattern or practice of persecution”? with all the evidence submitted by the circumstances under which his case It is mere coincidence having nothing petitioner in his written decision. “His was initiated. The petitioner’s asylum to do with their sexual orientation that argument that the IJ erred in failing petition was untimely, and the court hundreds of gay men were murdered in to request additional evidence fails held that it had no jurisdiction to review one year?? One is struck by the irony because it was [petitioner’s] burden to the IJ’s dismissal of the asylum petition of reading this June 2 statement by establish his eligibility for relief.” The on this ground in the absence of any the 2nd Circuit panel, when the New petitioner is represented by Maria Isabel constitutional or legal issues about the York Times subsequently reported in A.N. Thomas of Princeton, New Jersey. IJ’s decision; the petitioner “simply depth about the alarming situation for In the context of the current situation in ‘quarrels over the correctness of the gay people in Brazil. See A. Jacobs, Brazil, this ruling strikes this writer as factual findings,’” wrote the court. As to Brazil is Confronting an Epidemic of fundamentally unjust. the withholding of removal ruling, the Anti-Gay Violence, New York Times, petitioner’s burden would be to show July 5, 2016 (website), July 6, 2016 that past harms he suffered in Brazil (print edition) (“Brazilians have been U.S. COURT OF APPEALS, 5TH and/or evidence about conditions for gay confronting their own epidemic of anti- CIRCUIT – A gay HIV-positive man men in Brazil at the time of his hearing gay violence – one that, by some counts, from Mexico lost his appeal of the would support the conclusion that he has earned Brazil the ignominious Board of Immigration Appeals’ denial had a reasonable fear of persecution ranking of the world’s deadliest of his request for asylum, withholding of if he were deported to his homeland. place for lesbians, gays, bisexual and removal, or relief under the Convention “Substantial evidence supports the IJ’s transgender people.”) Unfortunately, against Torture (CAT), in Elizondo v. conclusion that the rapes [petitioner] under the standards governing judicial Lynch, 2016 WL 3402589, 2016 U.S. suffered lacked a nexus to a protected review of BIA rulings, the court of App. LEXIS 11086 (5th Cir., June 20, ground: [petitioner] did not allege appeals is supposed to focus solely 2016). Although the court accepted the any facts to support a nexus finding.” on the evidence presenting to the proposition that HIV-positive gay men (Rapes?) It seems the petitioner was Immigration Judge at the time of the qualify as a “particular social group” expelled from his family’s home when hearing, limiting its review to the record for purposes of analyzing such claims, he was 17, but the court said that this compiled at that time, and to ignore it found that Elizondo’s evidence “did not rise to the level of persecution” later evidence about actual conditions about his experiences in Mexico did because “he found an alternate place to in the country at the time it is reviewing not prove that he was persecuted live and a job.” As to his fear of future the decision. This article suggests that because of his membership in that

304 LGBT Law Notes Summer 2016 REFUGEE LITIGATION class. “Though Elizondo testified that denial of his application for asylum, also noted ways in which the IJ and he suffered insults from persons based withholding of removal or protection panel decisions had misrepresented the on his homosexuality,” wrote the court under the Convention against Torture factual record in the case. Grants of en per curiam, “those comments do not was denied last November in a 2-1 banc rehearing are exceedingly rare in qualify as persecution. Elizondo’s panel decision. Bringas-Rodriguez cases where the government is seeking testimony regarding the robberies he v. Lynch, 805 F.2d 1171 (9th Cir. to deport undocumented non-citizens, suffered and the assault he experienced 2015), petition for rehearing en banc so the grant of rehearing, which also do not show that he was persecuted granted, 2016 U.S. App. LEXIS 10766 effectively quashes the panel decision on account of his membership in (9th Cir., June 14, 2016). Evidently a as a precedent, is significant, in light a particular social group. Further, majority of the judges on the circuit of the recent trend of federal appellate Elizondo did not report any incidents found some merit to dissenting Judge decisions resisting asylum claims from to the authorities, and there is no William Fletcher’s detailed critique of gay Mexicans. (By contrast, the 9th evidence in the record that the Mexican the majority opinion. The petitioner Circuit has been very open to asylum government is unable or unwilling recounted a lengthy history of sexual claims from transgender Mexicans to control the violence.” Apparently, abuse perpetrated by male members of over the past few years.) In the huge the court proceeds oblivious to the his family throughout his childhood. 9th Circuit – there are currently 29 general media reports about anti-gay The petitioner, brought to the U.S. active judges, in addition to many violence in Mexico or the government’s by his mother and step-father as a senior judges who still hear cases – limited ability to control violent acts teenager in 2004, lived in the U.S. en banc rehearing is carried out in by criminal groups, or the dismissive without incident until he incurred a 11-member panels. In this case, the or abusive responses of the police to 90-day jail sentence at age 20 (in 2010) three-judge panel included a district complaints by gay citizens. “The BIA’s on a charge of “contributing to the judge sitting by designation (who was and the IJ’s decisions that Elizondo delinquency of a minor” in Colorado the tie-breaker on the panel), so the was not entitled to asylum because he when “he was drinking at his house and en banc panel will include the two failed to establish that he suffered past a friend brought over a minor.” After judges from the 3-judge panel and nine persecution by actors that the Mexican he served his sentence, the Department randomly drawn members from among government was unwilling or unable to of Homeland Security sought to deport the active judges of the circuit. If Judge control and based on membership in a him, and he filed his application for Fletcher’s views carry the day in the en particular social group are supported asylum, withholding or CAT protection banc panel, the result could be a more by substantial evidence,” wrote the in February 2012. The Immigration liberal view of asylum claims from gay court. “Because Elizondo fails to Judge and the BIA faulted him for not Mexicans in a circuit which is home to show that he is entitled to relief in the going to the authorities when he was a large proportion of the undocumented form of asylum,” continued the court, sexually abused by family members, immigrants from Mexico, and thus “he cannot establish entitlement to even though at the time these events receives a large proportion of their withholding of removal, which requires occurred the Mexican police were petitions to review BIA denials. The a higher burden of proof. The record notorious for abusing gays and refusing petitioner’s quest for en banc review in evidence does not show that it was to follow up on these kinds of cases. this case was supported by five amicus more likely than not Elizondo would be The 3-judge panel decision relied briefs that were joined by a wide array tortured if returned to Mexico,” so he on recent State Department country of LGBT rights groups, disability rights was not entitled to relief under the CAT, reports about recent developments groups, organizations concerned with either. Elizondo was represented by concerning LGBT rights in Mexico to refugee issues, and the United Nations Jodilyn Marie Goodwin of Harlingen, reject the claim that he could reasonably High Commissioner for Refugees, Texas on the appeal. fear persecution in Mexico, but Judge whose brief was prepared by pro bono Fletcher pointed out that since the attorneys at Williams & Connolly LLP, petitioner last entered the U.S.A. from Washington, D.C. U.S. COURT OF APPEALS, 9TH Mexico in 2004, more recent country CIRCUIT – The 9th Circuit announced reports were irrelevant. The question that a majority of active judges in the whether he had a reasonable fear of U.S. COURT OF APPEALS, 9TH circuit voted to grant en banc rehearing persecution as an openly gay, HIV+ CIRCUIT – In Ceron-Martinez v. Lynch, of an appeal by a gay, HIV-positive man in Mexico is supposed to be 2016 U.S. App. LEXIS 10380, 2016 WL Mexican man, whose petition to review judged based on the conditions in the 3212256 (June 8, 2016), one sees how the Board of Immigration Appeals’ country at the time he left. Fletcher critical the composition of three-judge

Summer 2016 LGBT Law Notes 305 REFUGEE / PRISONER LITIGATION panels can be to the possible success of AIDS in Mexico” and asserted that he record does not compel the finding that a pro se refugee appeal. The petitioner is “will suffer persecution if forced to the IJ’s unwillingness to believe this an HIV-positive man from Mexico who return to Mexico.” Since they did not explanation, in light of the importance was denied withholding of removal by question his credibility, she wrote, “we of the omitted incidents in his asylum an Immigration Judge and the Board of have jurisdiction to consider Ceron’s claim, was erroneous.” Petitioner’s Immigration Appeals. He sought review, argument that the IJ and BIA failed to counsel on appeal was Reynold E. arguing that the IJ and the BIA “failed presume the truth of his testimony, and Finnegan, II, of Finnegan & Diba, Los to presume the truth of his testimony that Ceron adequately raised a pattern Angeles. that the hospital [in Mexico] turned or practice claim.” She would have him away because he had AIDS” even granted the petition to review the BIA’s though they did not make a finding that decision on the merits. he lacked credibility. The memorandum PRISONER LITIGATION NOTES opinion for the majority of the panel – George W. Bush appointees Consuelo U.S. COURT OF APPEALS, 9TH CALIFORNIA – On June 6, 2016, the Callahan and Randy Smith – engaged CIRCUIT – A gay man from Moldova United States Supreme Court ruled in an extremely technical argument struck out in his appeal of the Board that the Prison Litigation Reform Act disclaiming jurisdiction to deal with of Immigration Appeal (BIA) denial [“PLRA”] requires inmates to exhaust Ceron’s appeal on the merits, claiming of his petition for asylum, withholding “only such administrative remedies he had not sufficiently “exhausted” the of removal or protection under the that are ‘available’” prior to initiating administrative process. In a strongly- Convention against Torture (CAT). federal civil rights litigation. Ross v. worded dissent, Senior Judge Dorothy Zubcu v. Lynch, 2016 WL 3079311, Blake, 2016 WL 3128839 at *11, 2016 Nelson, a Carter appointee, sharply 2016 U.S. App. LEXIS 9944 (9th Cir., U.S. LEXIS 3614 at *27. In Johnson v. disagreed with the majority, finding June 1, 2016). As is frequently the Perry, 2016 WL 3543503 (E.D. Calif., that Ceron had “sufficiently exhausted case in these summary proceedings, June 24, 2016), United States Magistrate his argument that the IJ and BIA failed the memorandum opinion for the 9th Judge Allison Claire summarized the to presume the truth of his testimony, Circuit panel does not include a detailed exceptions to exhaustion, as identified and that he also sufficiently raised a recitation of factual allegations. The by the Supreme Court, as follows: (1) pattern or practice of persecution of a court found that the BIA’s ruling against when an administrative procedure group of persons claim.” She pointed the petitioner on credibility grounds “operates as a simple dead end – when out that Ceron was pro se for “a was supported by substantial evidence. officers [are] unable or consistently majority of the proceedings before the The problem is that he submitted two unwilling to provide any relief to IJ and the BIA,” and that he “adequately asylum applications, the first grounded aggrieved inmates”; (2) when the raised to the BIA the issue of the IJ’s on a claim that he “was persecuted due administrative process is “so opaque consideration of his credibility such to his political opinion and religion,” that if becomes, practically speaking, that we have jurisdiction to consider the second that he was persecuted incapable of use,” that is, “no ordinary the merits of his argument.” She also “based on his sexual orientation.” BIA prisoner can discern or navigate it”; contended that “a fair reading of found that the failure to mention sexual and (3) “when prison administrators Ceron’s December 2013 and April 2014 orientation in the first or to substantiate thwart inmates from taking advantage briefs demonstrates that he has raised a the allegations about political of a grievance process through pattern or practice claim,” including his persecution fatally undermined the machination, misrepresentation, or submission of documentary evidence petitioner’s credibility, both as to his intimidation.” Ross, Slip Op. at 9-10. on “the persecution of individuals asylum petitions and his CAT claim. Here, prisoner Gilroy E. Johnson alleged suffering from HIV/AIDS in Mexico, Furthermore, there was nothing in the that officials thwarted his filing of such as a news article about a gay, record to document a contention that he grievances, after he suffered retaliation HIV-positive man who was tortured, was likely to confront torture or serious following complaining about officer beaten and suffocated, and found dead harm if deported back to Moldova. misconduct. Screening the case under with a sign stating in part, ‘This is The petitioner claimed that his first 28 U.S.C. § 1915A(b)(1),(2), Judge Claire what happens to me for going around asylum petition was filled out for him dismissed the complaint for inadequate infecting people with AIDS.” Ceron’s by a friend to whom he didn’t want to specificity in pleading of exhaustion brief also described the “widespread disclose his sexual orientation. That under the PLRA, but the Supreme . . . stigmatization and abuse of HIV- argument cut no ice with the BIA or the Court’s recognition of exceptions to positive individuals or people with court, which quoted a prior case: “the exhaustion (particularly interference

306 LGBT Law Notes Summer 2016 PRISONER LITIGATION with remedies available in theory) is at page 489). The settlement included 3), primarily because she did not then validation of where numerous Circuit provision of “other” treatments and have a diagnosis of “gender dysphoria” Courts have been trending recently. services, some of which were yet to and he regarded her claim to be a On the merits, Judge Claire also found be negotiated. The parties are still medical “dispute” about treatment Johnson’s allegations too vague and fighting about them. By Order of June that is not actionable under the Eighth conclusory, but she allowed him to 9, 2016, which appears to be available Amendment (and without citing the replead Eighth Amendment causes of at this time only in PACER, in Quine Ninth Circuit’s reversal of a summary action based on: (1) failure to protect; v. Beard, 3:14-CV-02726 (N.D. Calif.) dismissal of a transgender prisoner’s (2) purposeful contamination of his JST (NJV), and in news accounts, U.S. pro se complaint protesting lack of food; and (3) interference with his legal Magistrate Judge Nandor J. Vadas (who treatment in Rosati v. Igbinoso, 2015 mail. The first claims bears elaboration has enforcement of the settlement) WL 3916977 (9th Cir. June 26, 2015), for Law Notes readers. Johnson claimed ruled on some of the minutiae facing reported in Law Notes (Summer 2015 that officials called him gay, a “snitch” transgender prisoners on a daily basis. at page 299). Now Denegal is back, and a child molester to incite others He found that transgender prisoners apparently pleading her entire history to harm him, stating a potential claim should have “at least some access” to the since childhood and her odyssey in of deliberate indifference to his safety following: Pajama/Nightgown, Robe, prison (per the lengthy recitation in under Farmer v. Brennan, 511 U.S. Sandals, Scarf, T-Shirts, and Walking the opinion), and Judge Seng will 825, 837 (1994). Judge Claire included Shoes. Chains/necklaces should be allow her to proceed past screening, a nationwide string of cases finding allowed “in the same manner as in Denegal v. Farrell, 2016 U.S. Dist. failure to protect claims based on verbal inmates housed in female institutions”; LEXIS 88937, 2016 WL 3648956 (E.D. harassment designed to incite inmate- and “supervised access” should be Calif., July 8, 2016), so she will be able on-inmate violence. See Valandingham permitted for pumice stone, emery to litigate her claim that she is being v. Bojorquez, 866 F.2d 1135, 1139 (9th boards, and curling irons. By contrast, unconstitutionally denied appropriate Cir. 1989) (correctional officer calling the following items allowed in female treatment for the serious medical a prisoner “a ‘snitch’ in the presence of institutions “may justify a policy that condition of her gender dysphoria. other inmates is ‘material’ to a section does not allow . . . bracelet, earrings, Denegal is receiving hormone therapy, 1983 claim for denial of the right not hair brush, and hair clips” in male and this lawsuit is about her demand to be subjected to physical harm”); institutions. The parties were directed for sex reassignment surgery. In light Thomas v. D.C., 887 F. Supp. 1, 4-5 to continue to meet and attempt to agree of litigation over this issue in several (D.D.C. 1995) (telling other inmates about “binders.” Attorneys for Quine cases last year in the federal courts plaintiff was “a homosexual and a heralded the decision as challenging in California, she may have a strong ‘snitch’”); see also Flores v. Wall, 2012 “gender norms” used to discriminate case. Surprisingly, the court’s opinion WL 4471101, at *12, 2012 U.S. Dist. against transgender prisoners, does not mention a concession by the LEXIS 136668, at *41-2 (D.R.I. Aug. according to a report by Associated California Corrections system last 31, 2012), report and recommendation Press, 6/10/16. Shiloh Quine, who is summer that it may not maintain a adopted, 2012 WL 4470998, 2012 U.S. serving a life sentence, is set for sex blanket ban on sex reassignment surgery Dist. LEXIS 139972 (D.R.I. Sept. 25, reassignment surgery in December. for transgender inmates, regardless 2012) (correctional officers “spreading She is represented by Morgan Lewis of credible medical opinion that such rumors that plaintiff was homosexual & Bockus, LLP, San Francisco, and surgery is “medically necessary” in and a snitch,” citing cases from the the Transgender Law Center, Oakland. a particular case. William J. Rold & First, Eighth, and Tenth Circuits William J. Rold Arthur S. Leonard and District Courts in Kentucky and Missouri). Judge Claire denied appointment of counsel at this juncture. CALIFORNIA – Last fall, U.S. ILLINOIS – Dannel Maurice Mitchell William J. Rold Magistrate Judge Michael J. Seng is an HIV+ inmate and a determined dismissed the pro se complaint of litigator, with various cases before transgender inmate Dwayne Denegal, two federal judges in the Southern CALIFORNIA – Law Notes reported a/k/a Fatima Shabazz, for failure to District of Illinois. In Mitchell v. “California Adopts Guidelines for state a claim in Denegal v. Farrell, Pace, 2016 WL 3087454 (S.D. Ill., Prisoner Requests for Sex Reassignment 2015 U.S. Dist. LEXIS 122326 (E.D. June 2, 2016), United States District Surgery,” as part of the settlement of Calif., September 14, 2015), reported in Judge J. Phil Gilbert reviewed under the Quine litigation (November 2015 Law Notes (October 2015 at pages 462- 28 U.S.C. § 1915A the sufficiency

Summer 2016 LGBT Law Notes 307 PRISONER LITIGATION of a claim that Mitchell was denied a claims without prejudice. The opinion frivolous pleadings) under 28 U.S.C. shower after accidentally defecating on includes a review of standards for §§ 1915(e)(2)(B) and 1915(g). Wherry himself and was forced to clean himself liability generally, including individual alleged that a guard threatened to in humiliating fashion before other responsibility of nurses under Holloway “spray your black ass” and called him inmates and staff. Judge Gilbert found v. Delaware County Sheriff, 700 F.3d “Itsy Bitsy Teeny Weeny,” which he said that Mitchell stated a claim against the 1063, 1075 (7th Cir. 2012). She also was a homophobic slur in prison. The corrections officer who said he was directed service (with addresses to be statements were isolated (two remarks taking an “unauthorized” shower and provided in camera, if needed) and in one day), and not accompanied by forced him to leave the shower before required responsive pleadings. William physical conduct. Calling the remarks washing, leaving him with “no other J. Rold “limited commentary” in a prison option than to clean himself in front of context, Judge Goodwin found violations his peers in the common area.” Judge of neither the Eighth Amendment nor Gilbert reviewed the claim as one of LOUISIANA – U.S. Magistrate Judge the Equal Protection Clause. Wherry “forced public nudity . . . evaluated Karen Roby Wells dismissed pro was a California prisoner confined under the same standard as claims of se HIV+ inmate Pernell C. Kellup’s at North Fork Correctional Facility humiliating strip searches.” He found complaint on screening under 28 [“North Fork”], a private prison in that Mitchell “plausibly alleges that the U.S.C. §§ 1915(e)(2) and 1915A in Oklahoma run by the Tennessee-based [incident] in question was motivated by Kellup v. Gusman, 2016 WL 3627321 Corrections Corporation of America a desire to harass or humiliate rather (E.D. La., June 9, 2016). Judge Wells [“CCA”]. Although a claim was not than by a legitimate justification,” conducted a Spears hearing – Fifth stated against her, the guard engaged citing King v. McCarty, 781 F.3d 889, Circuit informational interview with in state action under West v. Atkins, 897 (7th Cir. 2015) and other 7th Circuit pro se inmates to screen cases under 487 U.S. 42, 48 (1988); but Wherry also cases. He found that the officer could Spears v. McCotter, 766 F.2d 179 (5th sued North Fork, which Judge Goodwin have issued a ticket for the unauthorized Cir. 1985) – and determined that his found not to be amenable to suit. There shower while still allowing Mitchell to claims of mold and sewage problems are no appearances listed in the decision clean himself. He ordered service and in the Orleans Parrish jail system did (or on PACER), so Judge Goodwin’s directed that the defendant not waive not amount to Eighth Amendment web page and internet recitations about reply under 42 U.S.C. § 1997e(g). In violations under Wilson v. Lynaugh, North Fork and its amenability to suit Mitchell v. Fulk, 2016 WL 3071993 878 F.2d 846, 849 & n.5 (5th Cir. 1989). apparently are derived from the court’s (S.D. Ill., June 1, 2016), United States Moreover, a one-week delay in receipt judicial notice and other District Court District Judge Staci M. Yandle of HIV medication (while diagnosis decisions regarding CCA’s operations addressed preliminary review of claims was confirmed) did not state a claim in Oklahoma. Judge Goodwin does not of denial of medical care for HIV under Estelle v. Gamble, 429 U.S. 97, discuss whether or not CCA could be and other conditions. Without much 102-103 (1976), even though he claimed sued, but it seems academic on these discussion about the actual denials nausea and weight loss during the facts. William J. Rold of care (which recited mostly a list interval. The delay was too short and of complaints, including “untreated” the consequences too small to constitute pain), she found on “liberal” reading “deliberate indifference” (Fifth Circuit TEXAS – This case raises the issue of the complaint “colorable” claims of string cites omitted). William J. Rold of when a prisoner who has had three deliberate indifference under Estelle prior cases dismissed for failure to state v. Gamble, 429 U.S. 97, 104 (1976), a claim can nevertheless overcome against the individual defendants, who OKLAHOMA – In Wherry v. Gunter, the “three strikes” bar of the Prison included physicians and nurses, as well 2016 U.S. Dist. LEXIS 87950, 2016 Litigation Reform Act and proceed in as a consultant – if he could be shown WL 3676796 (W.D. Okla., July 6, forma pauperis, because of “imminent to be a “state actor” under the standards 2016), Chief U.S. District Judge Joe danger.” Plaintiff Robert Miller alleged of Rodriguez v. Plymouth Ambulance L. Heaton adopted the Report and that a sergeant persuaded medical staff Serv., 577 F.3d 816, 822-30 (7th Cir. Recommendation of Magistrate Judge to deny him HIV medication for over 2009). She found inadequate allegation Charles B. Goodwin, dismissing the a month and also arranged for another of pattern and practice to proceed against civil rights complaint of pro se inmate inmate to assault him. United States the corporate defendants (Wexford Ronnie Wherry, Jr., on initial screening District Judge Michael H. Schneider Health Services and the University (and assessing “one strike” under the ruled that the “imminent danger” of Illinois), and she dismissed these Prison Litigation Reform Act, for exception did not apply to allegations

308 LGBT Law Notes Summer 2016 PRISONER / LEGISLATIVE about “past acts” in Miller v. University an affidavit describing their efforts Amendment requires the government of Texas Medical Branch, 2016 WL to keep Gulley-Fernandez in general to be neutral in matters of religion, so 3267346 (June 15, 2016), adopting the population, thwarted, they say, by her privileging particular religious beliefs report of the reviewing United States own conduct (“he continues to yell or would seem to be a clear violation of Magistrate, who also noted that, in talk at the cell front and through the such neutrality, as a federal district addition to the three prior “strikes,” the air vents about his sexual preferences court ruled in preliminarily enjoining instant complaint was duplicative of which has led many of the other enforcement of Mississippi’s HB 1523. yet another lawsuit Miller had pending inmates getting aggravated”). The state Proponents of the measure asserted in the Eastern District of Texas. Judge also says that the “seized” materials that it was intended to accommodate Schneider found that the allegations were magazines belonging to another the religious free exercise rights of of denial of medical care for a fixed inmate, where Gulley-Fernandez individuals and institutions and should period in the past and the placement had used the law library typewriter be allowed the same as other provisions of an “enemy” in Miller’s cell to to alter addresses in order to receive of federal law that accommodate facilitate an assault did not meet the the publications herself. Judge Randa religious observers. The measure “imminent danger of serious physical found that the submissions indicated cannot be enacted during the current injury” exception to the three-strikes that Gulley-Fernandez was a “troubled session of Congress, since Senate rule of 28 U.S.C. § 1915(g), because individual with behavioral problems Democrats would filibuster it and even the danger did not exist at the time . . . regularly receiving support at the if it were to get through both houses, the federal lawsuit was filed, citing prison . . . [whose] ongoing actions and President Obama would veto it. Ciarpaglini v. Saini, 352 F.3d 328, 330 behavior results in the staff moving (7th Cir. 2003), and Baños v. O’Guin, him to restrictive housing. None of the 144 F.3d 883, 884-85 (5th Cir. 1998). staff’s actions resulted from retaliatory U.S. DEPARTMENT OF DEFENSE – The dismissal was without prejudice animus and instead were used to On June 30, the Defense Department to Miller’s proceeding after paying protect Gulley.” Gulley-Fernandez issued Release No. NOR-246-16, titled the full filing fee, and also without demonstrated neither irreparable harm “Secretary of Defense Ash Carter prejudice to the Court’s “frivolousness nor likelihood of success on the merits Announces Policy for Transgender analysis under 28 U.S.C. § 1915A” sufficient for preliminary relief. Judge Service Members. The policy establishes should Miller pay the fee and refile. Randa has previously denied counsel, “a construct by which service members William J. Rold but he again allows the plaintiff to may transition gender while serving, proceed on medical care and protection sets standards for medical care, and from harm claims. It seems clear that outlines responsibilities for military WISCONSIN – Law Notes has twice Gulley-Fernandez is foundering, and services and commanders to develop previously written about Wisconsin legal assistance (and an expert) would and implement guidance, training and transgender prisoner Dominique Dewayne be useful – and save the court’s time in specific policies in the near and long- Gulley-Fernandez’s multiple lawsuits the long run. William J. Rold term.” Which is DOD bureaucratic about conditions of confinement, speak for saying that a process is being most recently in Gulley-Fernandez v. launched that will roll out over time – Johnson, 2016 WL 1169470 (E.D. Wisc., about a one-year period – but: “Effective March 21, 2016), reported in April 2016 LEGISLATIVE & ADMINISTRATIVE immediately, service members may at page 167, wherein U.S. District Judge no longer be involuntarily separated, Rudolph T. Randa denied preliminary U.S. CONGRESS – Rep. Jason Chaffetz discharged or denied reenlistment relief but ordered consolidation of (R-Utah), chair of the House Oversight solely on the basis of gender identity. claims. Now, after defendants have & Government Reform Committee, Service members currently on duty answered the most recent pleadings held a July 12 hearing on H.R. 2802, will be able to serve openly.” This was (including two new lawsuits), Judge a bill ironically named the “First a historic announcement, denied rather Randa again denies preliminary relief Amendment Defense Act” that would longer than had been expected when in Gulley-Fernandez v. Johnson, violate the Establishment Clause by Secretary Carter announced shortly 2016 WL 3149714 (E.D. Wisc., June sheltering those with religiously-based after his appointment that he would 3, 2016). Gulley-Fernandez asked objections to same-sex marriage from launch an effort to figure out how to for a transfer, claiming transphobic any adverse consequences to their allow transgender people to serve in harassment and unlawful seizure of employment, tax status or government the U.S. military. Carter designated written materials. State officials filed contracts under federal law. The 1st Acting Under Secretary of Defense

Summer 2016 LGBT Law Notes 309 LEGISLATIVE for Personnel and Readiness Peter with E.O. 112146, as amended by counselor. The head of the state Board Levine as the point person to work President Obama to extend the ban on of Examiners in Counseling, defending with the various military services discrimination by federal contractors the rule, said it was necessary to to “monitor and oversee” the effort to sexual orientation and gender protect the rights of both counselors an to make appropriate policy changes identity. This was the first time since clients, and that counselors would be and physical adjustment of facilities. the 1970s that the Department updated required to perform “due diligence” by “The full policy must be completely its sex discrimination guidelines. consulting with a peer before exercise implemented no later than July 1, According to a fact sheet issued to their right to refuse services. The 2017,” says the release. A “Transgender announce the new guidelines, the new American Counseling Association’s Service Member Policy Implementation rules bring the sex discrimination CEO, Rich Yep, told the press that Fact Sheet” can be found on the DoD guidelines “from the ‘Mad Men’ era to this new rule “directly violates” the website. While the announced policy the modern era.” The final regulations, organization’s standards and “creates will allow transgender people already which were first published as proposed an environment” for discrimination. in the military to remain, the “initial rules on January 30, 2015, go into “As a profession dedicated to diversity accession policy” governing new effect on August 15, 2016. and inclusivity, we urged them not recruits “will require an individual to to pass this,” he wrote, stating that have completed any medical treatment the ACA “remains steadfast in its that their doctor has determined is ARKANSAS – A Texarkana non- opposition to this unethical law necessary in connection with their discrimination ordinance that had that enables prejudice.” Little Rock gender transition, and to have been been adopted unanimously by the City Democrat Gazette, July 13. stable in their preferred gender for 18 Council was repealed in a referendum months, as certified by their doctor, vote on June 28 by 3,409 to 881. Only before they can enter the military.” In 20% of the voters favored keeping the CALIFORNIA – Palm Springs City other words, young people who have ordinance! The ordinance dealt with Council voted unanimously on July been diagnosed with gender dysphoria city employment and city contractors, 6 to approve an ordinance to convert but have not initiated a transition and included sexual orientation and all single-stall restrooms in public process will not be welcome to enlisted gender identity as forbidden grounds buildings to being gender-neutral. The and initiate their transition process at for discrimination. Opponents whipped ordinance also applies to businesses the expense of the Defense Department, up a storm against the measure by accessible to the public, such as bars, but those who are already in the service calling it a “bathroom bill” and raising restaurants, and retail stores. The and receive the appropriate diagnosis fears that the measure would endanger intent is to protect transgender people from military medical personal will be women and children by allowing who fear harassment when using covered for their transition procedures transgender predators into bathrooms. public facilities consistent with their to the extent they are deemed In reporting on the vote, the Arkansas gender identity. A similar ordinance medically necessary. After a transition Times speculated that it was prelude passed last year by Cathedral City is completed, marked by a change in to a state “bathroom bill” in 2017, took effect on January 1, 2016. The the Service members “gender marker” confirming that Arkansas voters Council is also considering possible in the DoD’s personnel system, they overall are clueless about transgender legislation to encourage businesses “will use berthing, bathroom, and people and their lives. Arkansas to increase privacy in restrooms by shower facilities associated with their Times, June 29. * * * The Arkansas installing floor-to-ceiling toilet stalls. gender.” Any complaints of anti- Legislative Council’s Administrative The council is also considering a bill trans discrimination will be handled Rules and Regulations Subcommittee that would require anybody doing through DoD’s established equality gave final approval on July 12 of a business with the city to adopt an equal opportunity channels. regulation to allow counselors to refuse benefits plan, under which employers to work with clients if the counselor would be barred from discrimination has a “conflict of conscience.” Critics because of sexual orientation in the U.S. DEPARTMENT OF LABOR, of the new measure claim it permits administration of their benefit plans. OFFICE OF FEDERAL CONTRACT discrimination by counselors against Desert Sun, July 8. * * * The City of COMPLIANCE PROGRAMS – On LGBT clients. The rule protects Long Beach Council voted 8-0 to halt June 15 the Labor Department counselors from sanctions for referring “nonessential” travel to North Carolina published final regulations instructing away clients because of an “ethical, or Mississippi until their governments federal contractors how to comply moral or religious principle” held by the repeal recently enacted anti-LGBT

310 LGBT Law Notes Summer 2016 LEGISLATIVE laws. The vote also called for City that it will operate. The proposed Department of Education, indicated Hall to draft letters to the governors rule will also ban facility staff from that every year Guam’s educational of those states demanding repeal of any “attempt to change or discourage systems receive more than $45 million the laws. The council acted on the a child’s sexual orientation, gender in federal funds that are essential to recommendation of the city’s Human identity, or gender expression.” The operation of the system. Relations Commission. Long Beach DCF Secretary, Mike Carroll, denied Press-Telegram, June 23. We wonder that the June 12 shootings at the Pulse whether Governor McCrory (N.C.) or nightclub in Orlando had anything to HAWAII – On June 29, Governor Governor Bryant (MI) will deign to do with the Department’s decision to David Ige signed H.B. 2084 into law, answer the letters. reverse its withdrawal of the proposal. prohibiting insurers in the states from Of course, the Florida Conference of discrimination against individual Catholic Bishops, which presumably because of their gender identity. DELAWARE – The Delaware Senate supports bullying and harassment Honolulu Civil Beat, July 2. gave unanimous approval on June 9 of gay youth in order to scare them to a bill amending the definition of straight, announced its opposition to misconduct as ground for divorce the proposal, purportedly basing it ILLINOIS – The Chicago City to remove “homosexuality” and on concern for “other children” who Council voted on June 22 to delete a “lesbianism,” reported the Associated might be required to share a bedroom provision of the city’s Human Rights Press on June 10. “The divorce with “someone who ‘identifies’ as the Ordinance that allowed operators of law defines marital misconduct as same gender but remains biologically public accommodations to require behavior by a spouse so destructive different” and thus be subjected to patrons to present government-issued that a person filing for divorce assaults. Bizarre! * * * The Miami identification if their use of sex- could not reasonably be expected to Beach Commission voted unanimously designated facilities such as restrooms continue in the relationship,” said to adopt a ban on “conversion therapy” or locker rooms was questioned. The the report, given other examples of offered by licensed health care provision was attacked as a means of conduct listing in the statute: adultery, providers to minors on June 8. The “outing” and embarrassing transgender bigamy, criminal conviction with a vote came in the wake of the Florida patrons. penalty of imprisonment for a year or legislature’s failure to pass H.B. 137, more, habitual drinking or drug use, a bill that was introduced by Miami contracting a sexually-transmitted Beach’s openly gay state representative, INDIANA – The Howard County disease. The measure had already David Richardson. Safeguarding Commissioners approved on June 20 an been approved by the House and was America’s Values for Everyone, Press amendment to the county’s fair housing sent to Governor Jack Markell for his Release, June 8. ordinance to add sexual orientation, approval. gender identity and marital status as prohibited grounds of discrimination, GUAM – Guam is subject to Title IX in order to be sure that the county would FLORIDA – The Florida Department and receives funding for its public be able to receive pending grants from of Children and Families has reinstated schools from the U.S. government, so the U.S. Department of Housing and a proposal explicitly banning bullying efforts are under way to comply with Urban Development. The measure was and harassment of LGBT foster the requirements to accommodate passed “under protest” – not because children in group homes, after the transgender students. Pacific Daily the commissioners did not want to ban withdrawal of the proposal at the News (July 4) reported that the discrimination against LGBT people, instance of the Scott Administration, University of Guam and the Guam but because they felt that the phrase had generated a “public outcry” by Community College have both “actual or perceived” that was included civil rights groups, child-welfare signified that transgender students to track HUD language was ambiguous advocates and former foster youth, may access restrooms consistent and could create enforcement problems. according to a July 7 report in the with their gender identity, and that Kokomo Tribune, June 22. Orlando Sentinel. The Department any newly constructed facilities will announced that it is creating a position include gender-neutral restrooms for a full-time ombudsman to deal with in order to provide an appropriate IOWA – Seizing upon a poorly-worded discrimination complaints that might choice of facilities to all students. Jon brochure published by the Iowa be reported to an anonymous hotline Fernandez, superintendent of the Guam Civil Rights Commission, the Fort

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Des Moines Church of Christ filed to afford appropriate restroom access be exempt from disclosure to a member a lawsuit seeking to claim a religious for transgender students. The vote of the public. Davis’s attorney at exemption from any obligation to allow left it up to individual school districts Liberty Counsel, Mat Staver, said that transgender persons to use restrooms in to decide whether to comply. The the documents covered by the Opinion the church consistent with their gender Associated Press reported that Kansas would be provided to the AG’s office. identity. The offending brochure, receives over $479 million in federal Liberty Counsel has represented Davis published in 2008, appeared to require assistance for its public schools, pro bono, of course. Louisville Courier- churches to allow persons attending about 10% of the state’s education Journal, July 6. * * * The Kentucky religious services that were “open to budget. The Obama Administration Department of Corrections has ended a the public” to comply with the anti- has instigated lawsuits against some policy that allowed prison wardens to discrimination law’s gender identity school districts, but has avowed that it ban incoming sexually-oriented mail provision. However, in response to this will not take action to suspend federal for inmates if they concluded that it lawsuit and the threat of another by the funding pursuant to Title IX until the would “promote homosexuality.” The Cornerstone World Outreach Church federal courts definitely uphold this ACLU of Kentucky had challenged the of Sioux City, the Commission quickly interpretation of the law. policy on First Amendment grounds. issued a revised brochure clarifying that Corrections Commissioner Rodney places of worship are generally exempt Ballard issued a revised inmate male from the public accommodations KENTUCKY – The Bowling Green policy to prison staff during the first provisions except when they are used City Commission voted on July 5 to week of June, stating that all “sexually as polling places, are operating as day approve a syringe exchange program explicit materials” (defined as “pictorial care centers, or engaged in other non- as a public health measure to combat depictions of nudity” or “actual or religious activities. The Commission the spread of disease. The program simulated sexual acts”) would be said that it has never been asked to is being developed by the Warren prohibited, regardless of whether it has consider a complaint against a church County Health Department. The action anything to do with homosexuality. in a gender identity case since the responds to S.B. 192, passed by the Henderson Gleaner, June 9. statute was amended in 2007 to add Kentucky General Assembly in March, gender identity protection. Indeed, the which allows local governments to set Commission’s director said that the up such programs. Bowling Green Daily MAINE – A group calling itself Commission “has not done anything News, July 6. * * * Attorney General Equal Rights Not Special Rights to suggest it would be enforcing these Matt Beshear’s office has issued a (very unoriginal name, derived from laws against ministers in the pulpit, formal opinion that Rowan County the people who sponsored Colorado and there has been no new publication Clerk Kim Davis violated the state’s Amendment 2 in 1992) has launched or statement from the ICRC raising the Open Records Act by denying a request a referendum effort to repeal the issue.” One suspects that the lawsuit by the Campaign for Accountability for provision of the Maine Human Rights was brought to make a political point copies of any documents reflecting a Act prohibiting sexual orientation rather than in anticipation of having retainer or attorney-client engagement discrimination. The addition of sexual to defend discrimination claims. Such agreement between Davis or her staff orientation to the Human Rights Act suspicions are fed by the identification and Liberty Counsel, the anti-gay was approved by Maine voters in 2005 of the church’s legal counsel: Alliance religious organization that represented by a 55-45 percent margin, after a Defending Freedom, an organization her in her marriage license battle previous referendum had repealed a that is busy stirring up anti-gay and before the federal district court. Davis legislative enactment. The proponents anti-transgender litigation at every had incompletely replied to the request, of the new effort asserted that it was opportunity. Des Moines Register, July 9. and then refused a request by the necessary to protect the religious free Attorney General’s office to see the exercise rights of those who do not documents that she had withheld under wish to associated with homosexuals KANSAS – The State Board of her claim of privilege. The opinion or have an involvement with same-sex Education voted unanimously to does not state that she violated the marriages. The Maine legislature’s “ignore” the federal Education Act by withholding documents from attempt to enact same-sex marriage Department’s directive to school Campaign for Accountability, but was repealed in a 2009 referendum, systems that receive federal money rather that she violated it by refusing to but then in 2012 a referendum vote concerning their obligation under Title allow the Attorney General’s Office to approved same-sex marriage by 53- IX of the Education Amendments Act examine the documents she claimed to 47 percent. A 2014 NY Times poll

312 LGBT Law Notes Summer 2016 LEGISLATIVE showed 63% support for same-sex in Battle Creek. The ordinance provides branch contracts and grants include marriage among Maine residents. The exemptions for religious organizations, anti-discrimination provisions that proponents have one year from the and does not cover places of public cover gender identity or expression. time they start collecting signatures to accommodation. Livingston County State agencies are directed to review obtain at least 61,123 valid signatures Daily Press, June 29. * * * The Portage all their policies to bring them into of registered voters in order to get the City Council voted 6-1 on June 28 to compliance, with the Division of measure on the November 2017 general approve an ordinance that would ban Personnel charged to provide guidance election ballot. Portland Press, July 9. discrimination in housing, employment to state agencies by September 15 and and public accommodations because of propose any necessary rule changes. sexual orientation or gender identity. MASSACHUSETTS – Negotiators Newschannel3.com. from the state House and Senate NEW JERSEY – After a city resident reached a compromise on a bill to and Garden State Equality asked the add protection against discrimination MISSISSIPPI – The Jackson City town of Clifton to fly a rainbow flag because of gender identity in places Council voted 7-0 on June 14 to include to celebrate gay pride, Town Council of public accommodation to the state’s sexual orientation and gender identity divided evenly on the question, but Law Against Discrimination, and the in the city’s anti-discrimination Mayor Jim Anzali broke the tie at a measure passed both houses easily ordinance covering housing, public June 6 meeting in favor of flying the in a vote on July 7. Governor Charlie accommodations and employment, and flag. The mayor said he did not think Baker, a Republican who had opposed also to expand the hate crimes ordinance that flying a pride flag “is going to hurt the original bill, had later signaled that to encompass these categories. The anybody.” A flag raising ceremony was he would be inclined to sign the House vote was a sign of defiance to the state held on June 25. AP State News, June 9. version, which included a provision government, which legislated earlier requiring the Attorney General to issue this year to allow individuals and guidance and when and how action organizations with religious or moral NEW YORK – The State Division of could be taken against people who objections to marriage equality and sex Human Rights, which enforces the New assert gender identity for “an improper outside of heterosexual marriage to act York State Human Rights Law, has purpose.” This measure was intended in accord with their beliefs. As noted published a new regulation prohibiting to get at the phony objection cited by above, the state statute, which was to discrimination based on an individual’s opponents that forbidding this kind go into effect on July 1, did not do so relationship or association with a of discrimination will expose women because of a last-minute preliminary member of a “protected class.” Gay and children to danger from attack injunction issued by the U.S. District people are explicitly protected under in public restrooms. A version of this Court, finding that plaintiffs were the statute, and a recent regulation provision survived in the compromise likely to prevail on their claim that the promulgated by the agency provides bill. Boston Globe, July 8. Governor statute violates the federal constitution. that transgender people are also Baker signed the measure into law on As Jackson is the only jurisdiction covered, both within the ambit of sex July 8. It becomes effective on Oct. 1, within Mississippi that prohibits such discrimination, and for those dealing a compromise date between the Senate discrimination, the state law was with gender dysphoria, the ambit of and House versions. largely symbolic with respect to the the disability discrimination provision. rest of the state but threatened to render In a press release announcing the new the Jackson ordinance unenforceable. regulations, the Division gave the MICHIGAN – The City Council of following example of what might be Howell voted unanimously on June 27 prohibited: “job seekers may not be to approve a new antidiscrimination NEW HAMPSHIRE – On June 30, denied employment because of the ordinance that prohibits employment Governor Margaret Hassan signed gender identity, transgender status, or and housing discrimination on various Executive Order 2016-04, expanding other protected characteristics of their grounds, including sexual orientation the state’s existing anti-discrimination spouses.” JD Supra, June 29. and gender identity. A local press executive order to include gender report said that 38 other Michigan identity or gender expression. The communities have adopted similar order applies to state agencies in their NEW YORK – The New York City ordinance, and that Howell’s was employment practices and provision of Council approved an ordinance on patterned on one enacted three years ago services, and requires that executive June 21 that requires single-stall public

Summer 2016 LGBT Law Notes 313 LEGISLATIVE bathrooms to be gender-neutral. The state’s H.B.2. Transgender students can would not be “fair” to ask “the public” measure, which takes effect January 1, either use the bathroom they prefer or to pay for the procedure. The vote 2017, was approved by a vote of 47-2. can request access to a private facility affirmed a recommendation from the The measure would apply to any single- (such as a restroom in a school nurse’s board’s human resources committee. stall restroom that is open to public use. office). Staff members are instructed Cincinnati Enquirer, June 15. Restaurants and other retail businesses to address students by the name and in New York have already begun putting pronoun corresponding to their gender up new identifying signs on restrooms identity. The governor’s office issued a OREGON – The Oregon Division to indicate that people are welcome statement criticizing the school district of Motor Vehicles stated that it may to use restrooms consistent with their as having made a “radical change” to need a substantial period of time in gender identity. its policies. H.B. 2 is under attack in order to modify the software used to several court proceedings, and motions generate drivers’ licenses in order to for preliminary injunctions against its accommodate a court order granting NEW YORK – The New York City enforcement are pending. abc11.com, an individual’s petition to get a license Civilian Complaint Review Board June 21. that does not designate them as either issued its first comprehensive report male or female. On June 10, Judge on relationships between the LGBT Amy Holmes Hehn of the Multnomah community and the New York City OHIO – The City Council of Newark, County Circuit Court granted a petition Police Department in a document Ohio, voted unanimously to amend by Jamie Shupe of Portland, born with titled “Pride, Prejudice and Policing: its equal employment opportunity, male anatomy but seeking a license that An Evaluation of LGBTQ-Related fair housing and ethnic intimidation does not assign Shupe a specific legal Complaints from January 2010 through laws to add “sexual orientation,” gender. Shupe had undergone hormone December 2015.” The document is “gender identity,” and “gender therapy after retiring from the military, available on the Board’s website: http:// expression” as protected categories. stating that “transitioning to female www.nyc.gov/ccrb. It contains detailed Newark Advocate, July 6. * * * A was the only option available then” but breakdowns with graphs and charts little “zing” to the GOP? On July 13, refusing to embrace the gender binary. of complaints filed with the Board the City Council in Cleveland, Ohio, “It feels amazing to be free from a concerning conduct by NYPD staff unanimously repealed a provision in binary sex classification system that towards LGBTQ community members. its anti-discrimination ordinance that inadequately addressed who I really Overall, the data show that the volume had allowed limitations on restroom am, a system in which I felt confined,” of complaints in this category were at a access by transgender individuals. said Shupe in response to Judge Hehn’s peak in 2012 and have declined in each The city’s 2009 anti-discrimination ruling. A spokesperson for the DMV subsequent year. ordinance included gender identity, said that they had been in touch with but expressly allowed employers and Shupe. “At this point, we can’t fulfill businesses to limit restroom access the request,” said David House, “but NEW YORK – Long Beach City Council based on biological sex. The proposal we are studying it to figure out what voted unanimously on June 21 to to change that was introduced in 2013, computer system changes and statutory add gender identity to the city’s but remained dormant until somebody changes might need to be made.” anti-discrimination policy for its woke up and decided it would be a good He said that the existing database employees. The policy covers both idea to move the repeal measure prior program did not support a “third kind discrimination and harassment. The to the Republican Convention. Under of sex designation.” cnn.com, June 12; city’s anti-discrimination ordinance the revised law, transgender people can Statesmanjournal.com, June 22. does not cover use of bathrooms or use facilities that are consistent with other facilities, however. Newsday, their gender identity in workplaces and June 23. places of public accommodation. * * * PENNSYLVANIA – The Philadelphia The Cincinnati Public Library Board School Reform Commission voted voted unanimously to reject a request on June 16 to approve a new policy NORTH CAROLINA – The Charlotte by a transgender employee to cover allowing transgender students to use Mecklenburg Schools updated their her gender confirmation surgery under restrooms and joint groups – including policies to comply with the U.S. the health insurance plan. Although athletic teams – that correspond with Education Department’s requirements costs were not discussed publicly, a their gender identity, reported the under Title IX, in open defiance of the member of the board asserted that it Associated Press. Students will be

314 LGBT Law Notes Summer 2016 LEGISLATIVE allowed to determine which pronouns violation of their privacy and possible after constituents who wanted to open should be used to address them, and sexual assault by cisgender men posing a vegetarian restaurant with a unisex can wear clothing consistent with as transgender women in order to get bathroom were told by Metro codes their gender identity at school. * * * fraudulent access to the facilities. In inspectors that they could not have The Pittsburgh School Board voted order to lend credence to such fears, unisex restrooms because of the size unanimously on June 22 to approve a some anti-transgender men have of their establishment. Councilman districtwide policy outlining the rights, started to invade women’s restrooms in Brett Withers said that he learned protections, and support systems that a few isolated cases in order to make that several restaurants and other school must provide for transgender this seem like a real possibility. Of businesses were in violation of code students, reported the Associated course, a law that protects the right provisions because they wanted to Press. The policy allows students to use of transgender people to use facilities make single-user restroom facilities bathrooms and participate in physical consistent with their gender identity available to all patrons regardless of education classes and intramural would not authorize a cisgender man to sex or gender identity. The new law sports that “align with their gender use a restroom designated for women!! authorizes “unisex restrooms at most identity,” according to the AP report. businesses that have two or more Students may also determine the bathroom facilities that each consist of preferred name and gender pronouns RHODE ISLAND – The United single toilets and have locks.” to be used for them. * * * Proposals to Healthcare plan covering Rhode amend the state’s anti-discrimination Island state employees began law to cover sexual orientation and covering hormone therapy and sex TEXAS – Responding to an inquiry gender identity have been blocked for reassignment surgery for transgender from Lt. Gov. Dan Patrick, Texas many years in legislative committees state employees as of July 1, according Attorney General Ken Paxton issue A.G. with Republicans controlling both to an announcement by Governor Gina Opinion KP-0100 on June 28, advising houses, but a bill to protect LGBT Raimondo on June 23. According to that the Fort Worth Independent people from discrimination received a report by the Providence Journal School District’s superintendent had Senate committee approval in June (June 24), Rhode Island is the twelfth violated chapters 11 and 26 of the after the Orlando massacre. However, state to extend such coverage to its Texas Education Code by unilaterally in order to win enough votes from employees. Rhode Island was among adopting a policy providing that school Republicans to approve the measure, the early states to forbid gender identity officials will not advise parents about sponsors agreed to remove coverage of discrimination, dating back 15 years. the gender identity of their children public accommodations. Sharon Herald, The coverage for “irreversible surgical without the children’s permission. The June 28. Republicans generally believe interventions” is limited to employees superintendent adopted “Guidelines” that allowing transgender people to use 18 years or older, and surgical coverage on transgender students in April, which restrooms consistent with their gender is only available for persons who were stated to be mandatory for the identity will lead to the destruction of have completed twelve months of current school year. The guidelines were Western Civilization as we know it. “successful continuous full time real developed by district staff and were (They don’t seem to have realized that life experience in the desired gender.” adopted without any chance for public transgender people have been using comment or school board vote. Paxton restrooms consistent with their gender asserted that state law protects the right identity since the beginning of recorded TENNESSEE – The Nashville Metro of parents to information about their time, during which Western Civilization Council voted to eliminate the children. The Guidelines, on the other seems to have advanced . . . ) Actually, requirement that businesses with single- hand, assert that students have a right to we’re just kidding. What Republican toilet restrooms have separate facilities privacy, including “keeping a student’s legislators probably believe, with for labeled as being exclusively for men actual or perceived gender identity and some justification, is that if they vote or women. The Council unanimously expression private,” and directed that to approve such a measure, they will voted to “broaden exceptions for school personnel “may only share this attract primary opponents when they unisex restrooms, which are only information on a need-to-know basis seek re-election who will based their allowed in Nashville businesses that or as the student directs. This includes campaigns on the fear-engendering fall below a square-footage threshold,” sharing information with the student’s argument that letting transgender reported the Memphis Commercial parent or guardian.” The Guidelines also women use women’s restrooms puts Appeal on June 25. The measure direct that students have a right to control cisgender women and children at risk of was introduced by a councilmember the degree to which parents or guardians

Summer 2016 LGBT Law Notes 315 LEGISLATIVE / LAW & SOCIETY will be involved with the “transitioning” of current voting statistics, proponents evidence Mateen was anti-gay, which process of the student. Paxton opined that would need at least 246,372 valid would seem an odd thing to say about to the extent the Guidelines subordinate signatures from registered voters to a man who invaded a gay bar, shooting the rights of parents provided by qualify their initiative. At the rate and killing people and, according to Chapter 26, and were adopted without that signatures tend to be disqualified, some survivors, voicing anti-gay slurs. the input of the public and the school this means that they would actually Much remains to be learned about district’s board, they violate Chapter 11. have to get at least 325,000 signatures this occurrence, which was generally Austin American-Statesman, June 29. to survive any challenge and get to accounted the worst multiple-shooting Some of this may be sour grapes, since the ballot. They had scheduled an incident in the United States for a Patrick and Paxton were looking for an appointment to turn in the signatures by century or more. It stimulated rallies appropriately-situated school district to the July 8 deadline, but they contacted and memorial services internationally, be a plaintiff in the law suit attacking the the secretary of state’s office on July 7 but did not appear to have any Obama Administration’s construction to cancel the appointment. AP Alerts, discernible effect on Republicans in of Title IX to cover gender identity July 8. the U.S. Congress, who subsequently discrimination in schools, and they sought to repeal President Obama’s had hoped to enlist Fort Worth, until it executive order barring anti-LGBT developed that the school superintendent discrimination by defense contractors refused to play along. As a result, they LAW & SOCIETY NOTES leading to an impasse in Congress over ended up using a tiny rural district that a defense spending bill and callously does not appear to have any transgender MASSACRE AT ORLANDO GAY scheduled exactly a month later a students. BAR – On June 12, Omar Mateen committee hearing on a proposed brought an arsenal of weapons into “First Amendment Defense Act” Pulse nightclub in Orlando, Florida, intended to “protect” individuals and UTAH – The Utah County Board of and opened fire, ultimately killing 49 institutions who sought to discriminate Commissioners voted unanimously on people in the crowded gay-oriented against LGBT people based on their July 5 to add gender identity, sexual club and wounding scores more. Most religious views. (It seemed clear that orientation, and pregnancy/pregnancy- of the dead were Hispanic LGBT a main goal of the bill was to protect related conditions to the county’s non- people who were there celebrating a non-profit educational institutions discrimination policy, which makes theme night at the bar. During the hours from losing their privileged federal the County’s personnel rules and of his rampage and hostage taking, tax status if they violated Title IX by regulations match up with those of the Mateen communicated allegiance to discriminating against married same- state government. In 2015, the famous various Islamic terrorist groups. He sex couples.) “Utah compromise” resulted in the died when law enforcement officers addition of gender identity and sexual forced their way into the bar to rescue orientation to the state’s civil rights the remaining patrons and exchanged PRESIDENTIAL ELECTION – The law. Thus, the Commissioners’ action gunfire with him. Afterwards some Republican and Democrat National was mainly symbolic, since the county survivors claimed that Mateen had Conventions were scheduled to begin was already required to comply with frequented the bar in the past, and some on July 18 and July 25, respectively. At state law. However, County Personnel gay individuals claimed to have had our deadline, presumptive Republican Director Lana Jensen said, “We are contact with him through gay-oriented Presidential Candidate Donald Trump just making sure everyone is aware cruising apps, at least one person had announced that he would nominate those are officially part of the protected claiming to have had sex with him. His Indiana Governor Michael Pence to categories.” Provo Daily Herald, July 5. first wife speculated that he may have be his running mate. Trump has never been a closeted gay man. However, held elective office or any government a month later federal investigators position. Pence, who served six terms WASHINGTON – Proponents of an asserted that these claims were not in the House of Representatives before initiative that would repeal a state rule substantiated. Immediate reaction from winning election as governor of allowing transgender people to use Obama Administration officials was to Indiana, had a solidly anti-gay voting restroom facilities consistent with their describe it both as a terrorist act and record in the House, according to gender identity failed to file petition a hate crime, although again federal Human Rights Campaign. As governor, signatures by the statutory deadline to law enforcement officials a month he is most famous for having advocated get on this November’s ballot. In light later were insisting that there was no and signed into law an extreme

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Religious Freedom Restoration Act during his 2012 re-election campaign. outrageously insulting letter, and he lost that critics claims would sanction The proposed party platform work his appeal in the 9th Circuit, which held anti-gay discrimination by Indiana out by a committee dominated by her that the federal government could define businesses; blowback from the business supporters calls for enactment of the marriage as solely the union of a man community was so severe that Pence Equality Act and generally endorses and woman for federal immigration reluctantly signed an amendment equality rights for LGBT people under purposes, regardless what a state did. providing that the RFRA could not be federal law. The Supreme Court’s decision in raised as defense to a discrimination U.S. v. Windsor (2013), holding that claim. Pence describes himself as an federal refusal to recognize a state- Evangelical Christian. Trump’s views INTERNATIONAL SPREAD OF sanctioned same-sex marriage violates on LGBT issues are a moving target. At MARRIAGE EQUALITY – A the 5th Amendment, came many years times in the past he voiced support for Melbourne-Australia based LGBT after Adams’ death, but Sullivan, who same-sex marriage, criticized attempts rights activist, Tony Pitman, announced survived him and was residing in the to police transgender access to public that after Colombia and several U.S. “under the radar,” sought to revive restrooms, and supported measures Mexican states embraced marriage that old petition with the assistance of to ban anti-gay discrimination, but equality during June, the number of immigration lawyer Lavi Soloway, who in the course of his current run people in the world living in marriage specializes in representing same-sex for the Republican nomination he equality jurisdictions had exceeded couples. Soloway pressed for an apology backed away from all those positions, one billion. He cumulated current from the government for the way the announced that he would appoint population estimates. The largest petition was treated in the 1970s, and for Justices to the Supreme Court who country by population with marriage a new decision. A written apology was would overrule the marriage equality equality is the United States, followed soon forthcoming from the Homeland decision, and affirmed that he would by Brazil, France, the U.K., and South Security Department, and on January rescind President Obama’s executive Africa, all with populations exceeding 5, 2016, the U.S. Citizenship and orders requiring federal contractors 50 million people. The population Immigration Service (USCIS) approved not to discriminate because of sexual estimates were current as of July 1, 2016. Adams’ old visa petition. On April 21, orientation or gender identity. Neither Since the first same-sex marriages the USCIS issued Sullivan a “green Trump nor Pence raised any objection took place in the Netherlands in 2001, card” and a notice that his application to the product of the Republican “we’ve gone from zero to a billion in for permanent residence in the U.S. had Platform Committee, which opposes just 15 years,” Pitman exulted. But, been approved. “It is with great pleasure the Equality Act, criticizes the Supreme he said, “It’s terribly disappointing that we welcome you to permanent Court’s marriage equality decision, and that Australians will never be able resident status in the United States,” endorses conversion therapy to “cure” to say that we were among the first reads the notice on a Form I-797C. The homosexuality. As we went to press, billion people in the world to achieve resident status is good for ten years presumptive Democratic President marriage equality.” samesame.com. and can be renewed at that time. The Candidate Hillary Clinton had not au/news/13926/A-billion-people-now- full story of how this all unfolded can announced her choice for running live-with-marriage-equality. be found at a website maintained by mate. Clinton, who was First Lady of Soloway, domaproject.org. Arkansas and the United States during her husband’s administrations, served DEPARTMENT OF HOMELAND as U.S. Senator from New York and as SECURITY – In 1975, a “rogue” local NATIONAL PTA – The National Parent President Obama’s first Secretary of clerk in Boulder, Colorado, issued Teacher Association adopted a resolution State. She supported the repeal of the marriage licenses to some same-sex during its 2016 Annual Convention on “don’t ask, don’t tell” military policy, couples, including Richard Frank Recognition of Lesbian, Gay, Bisexual, the invalidation of the Defense of Adams and Anthony C. Sullivan. Transgender and Queer/Questioning Marriage Act, and the Supreme Court’s Adams, a U.S. citizen, then sought to Individuals as a Protected Class. They Obergefell decision, although some sponsor Sullivan, an Australian, as are for it, calling for federal policies critics noted that DADT and DOMA his spouse for immigration purposes. that specifically protect LGBTQ youth were both signed into law by her The Attorney General of Colorado had and “local practices that create and husband, President Bill Clinton, and disavowed the legality of the resulting maintain safe, affirming and inclusive she did not endorse marriage equality marriages. Adams’ petition was denied learning environments for all students,” until after President Obama had done so by the Immigration Service in an according to their July 5 news release.

Summer 2016 LGBT Law Notes 317 LAW & SOCIETY

The specific concerns mentioned in GALLUP POLL ON SAME-SEX once with a woman increased from the press release are bullying and MARRIAGE – According to a Gallup 3.1% to 7.7%. Among “millennials” – discrimination, but the release did Poll published on June 22, almost adults between ages 18 and 29 during not explicitly state a position on the half of the same-sex couples living the 2010s – 7.5% of men and 12.2% of bathroom access issue that is roiling together in the U.S. are married. A women reported having had at least one the country. Reuters report summarizing the results same-sex experience. Prior to 1990, the said, “The percentage of marriage percentage of the adult population who cohabiting same-sex couples, as believed that same-sex relations were HIV / AIDS – Media sources in opposed to couples living together but “not wrong” was 13%; in 2014, that Australia reported that Associate not married, rose to 49 percent from 38 figure had risen to 49% for all adults Professor David Harrich of QIMR percent before the ruling [in Obergefell and 63% for millennials. Berghofer Medical Research v. Hodges on June 26, 2015].” Gallup Institute in Brisbane had achieved an estimated that 123,000 same-sex U.S. experimental breakthrough with HIV, couples married in the year after WILLIAMS INSTITUTE (UCLA) – The finding a protein that can be used to Obergefell, with a high number of Williams Institute released a study, “switch off” infected cells, thus ending those unions actually taking place titled “How Many Adults Identify as their replication. So far his discoveries in states that had already legalized Transgender in the United States,” have only been in vitro, and he is marriage equality as a result of prior which substantially increases prior proceeding now to testing in animal litigation and legislative action. Gallup estimates, conclude that 0.6% of the subjects to determine the mechanism estimates that 9.6% of gay and lesbian adult population, or approximately 1.4 by which this discovery works. If it Americans are now married, and that million individuals, today identify as pans out, it could be possible to treat the percentage of same-sex couples transgender. The study extrapolated people with HIV infection once, rather living in a “domestic partnership” has from data collected in the Behavioral than having to administer medication declined to 10.1% from 12.8% during Risk Factor Surveillance System. In daily throughout their life. Courier- the same time period. Data had to be 2014, 19 states participating in that Mail, July 15. * * * News of Prof. accumulated from interviews, since survey included a question about Harrich’s discovery came hard on states do not general keep records transgender identity. The authors of the the heels of an announcement by the showing which marriages involve student also used data from the U.S. nation’s health officials that anti- different-sex couples and which Census Bureau’s American Community retroviral treatment for HIV was now marriages involve same-sex couples. Survey to supplement the date from so widespread in Australia that new The 2020 U.S. census should provide the 19 states covered in the BRFSS cases of AIDS are not being diagnosed. interesting nationwide data on the surveys. Thus, Williams Institute While 1,000 or more new cases of prevalence of same-sex marriage! announced, “The study provides the HIV infection are being reported first ever state-level estimates of the annually, actual cases of full-blown percentage of adults who identify as AIDS, in which an untreated infection ARCHIVES OF SEXUAL BEHAVIOR transgender for all 50 states. Hawaii results in immune system collapse – A study published in the journal (0.8%), California (0.8%), Georgia and the blossoming of opportunistic Archives of Sexual Behavior claims (0.8%), New Mexico (0.8%), Florida infections, are just not occurring, that the percentage of American adults (0.7%), and Texas (0.7%) are the states thus leading to celebratory headlines who say they have had at least one that have the highest percentages of announcing that the AIDS epidemic homosexual experience has doubled adults who identify as transgender.” is “over” in Australia. Well, yes and since the 1990s. The study is based on The study found that “young adults no. As long more than a thousand a survey of 30,000 adults. According are more likely than older adults new HIV infections are detected each to the survey data, the percentage of to identify as transgender. Among year, and as thousands of people are men who had sex at least once with adults ages 18 to 24, 0.7% identify as taking daily meds in order to suppress another man had increased from 4.5% transgender; among adults ages 25 to HIV infection, and some people are to 8.2% between 1990 and 2014, and 64, 0.6% identify as transgender; and dying each year from complications the percent of women who had sex among adults ages 65 and older, 0.5% resulting from the medication or the at least once with another woman identify as transgender.” The survey underlying infection, the epidemic is increased from 3.6% to 8.7%. Also, authors are Andrew R. Flores, Jody L. hardly “over”. It has just evolved to a the percentage of adults who said they Herman, Gary J. Gates, and Taylor N.T. different stage. had sex at least once with a man and Brown.

318 LGBT Law Notes Summer 2016 LAW & SOCIETY / INTERNATIONAL

UNITED METHODIST CHURCH – STONEWALL INN: ENSHRINING H.R. 2607), to rename the Jackson The Western District of the United GAY HISTORY – The Stonewall Inn on Heights Post Office in honor of the late Methodist Church elected an openly- Christopher Street, site of a historic “riot” Jeanne and Jules Manford, co-founders gay bishop, Rev. Karen Oliveto, on in June 1969 that is now widely identified of Parents, Families and Friends of July 15, despite the denomination’s as a signal event in the modern LGBT Lesbians and Gays (PFLAG) and continuing condemnation of same-sex rights movement in the United States, parents of LGBT rights activist Morty relationships. She is pastor of Glide became the focus of federal and state Manford. A companion bill has been Memorial United Methodist Church attention as President Barack Obama introduced in the Senate by New York’s in San Francisco, and is the first announced on June 24 the designation of two senators, Charles E. Schumer and openly-gay bishop to be elected in the a national monument zone centered on it Kirsten Gillibrand. 12.7 million member church. Several – the first officially designated national regional district have appointed gay monument commemorating gay history clergy, some Methodist churches have – to be known as Stonewall National allowed same-sex marriages to take Monument. The White House released INTERNATIONAL NOTES place, and there is turmoil within the a statement by the President, saying that denomination over these issues. AP the monument would “tell the story of UNITED NATIONS – The United Online, July 16. our struggle for LGBT rights.” (Obama Nations Security Council issued a had prominently mentioned Stonewall statement on June 14 condemning the in a litany of important civil rights June 12 Orlando gay bar massacre, ROMAN CATHOLIC CHURCH – events during his second inaugural s p e c i fic a l ly d e n o u n c i ng t a r g e t i ng p e o pl e Responding to press questioning during address.) Governor Andrew Cuomo then “as a result of their sexual orientation.” a flight from Argentina to Rome on designated it formally in a “Citation” This is the first such statement to be June 26, Pope Francis was asked by a on June 26 as a “State Historic Site.” issued by the Security Council in reporter whether he agreed with a recent Cuomo also announced the appointment response to a highly-publicized anti- comment by a Roman Catholic cardinal of an LGBT Memorial Commission in gay incident. eTurbonews.com, June 14. from Germany, reacting to the Orlando his Executive Order No. 158, charging Later in June, the United Nations Human massacre, that the church should the Commission with recommending Rights Council voted to create the UN’s apologize to gays. According to the New a site and design of a memorial “in first LGBT rights watchdog, by a vote York Times version of a Reuters report, the vicinity of the western portion of of 23-18 with 6 abstentions. The official “Francis, looking sad, recalled church Greenwich Village” to honor the victims title will be “independent expert” and teachings that homosexuals ‘should not of the June 12 Orlando massacre. The the position is charged with monitoring be discriminated against.’ ‘They should Commission was directed to complete “violence and discrimination based on be respected, accompanied pastorally,’ its work and provide its recommendation sexual orientation and gender identity.” he said. Then he added that he thought to the governor by December 31, 2016. In the past, resolutions of the Council the church should apologize not only * * * In a separate action, on June 17 had directed the human rights office to to gay people it had offended, but also New York City dedicated the corner of prepare reports on LGBT rights, but had to the poor, to women who have been 6th Avenue and Washington Place as not authorized establishing a position exploited, and to children who have Sgt. Charles H. Cochrane Way, in honor specifically to deal with LGBT rights been exploited by being forced to work. of a gay NYC police officer who came issues. Opponents of the resolution ‘It must apologize for having blessed out publicly to testify for the NYC Gay were led by Pakistan on behalf of so many weapons,’ he said.” Critics Rights Bill in 1986 and co-founded the members of the Organization for quickly pointed out the evasive nature Gay Officers Action League to advocate Islamic Cooperation, which succeeded of these remarks, as Francis did not for LGBT people within the New York in amending the resolution to require state any change in church doctrine City Police Department. Cochrane, who respect for local values, “religious regarding gay people, was willing to would lead GOAL’s active participation sensitivities,” or domestic politics.” refer to exploitation of women but in the annual Gay Pride March for Another amendment condemned any not to allowing women to participate many years, passed away in 2008. * * * “coercive measures” to change national fully in the church as priests or other In another LGBT history development, policies, which responds specifically to high clerical officials, and referred to U.S. Representative Joseph Crowley threats by western nations to suspend exploitation of children “being forced (D-Queens & the Bronx) announced financial aid from governments that to work” but not “being forced into that the House of Representatives had persecute people because of their having sex with priests.” Indeed! passed by unanimous consent his bill, sexual orientation or gender identity.

Summer 2016 LGBT Law Notes 319 INTERNATIONAL

Surprisingly, South Africa was of Appeal found for the police authority. one of those grounds,” said the court, among the abstaining voters, despite The Court of Cassation dismissed which found that “the applicant’s its constitutional provisions (the their appeal. They then moved to the detention verged on arbitrariness” which first in the world) forbidding sexual Netherlands and pursued their appeal enabled the Court to conclude that the orientation discrimination. The South to the European Court, which found a Convention had been violated from African representative said that the violation of Article 14 (prohibition of June 25 through August 22 of 2014 abstention was due to the “arrogant and discrimination) and Article 8 (right to while the applicant was detained until confrontational” of proponents of the respect for private and family life). The the authorities had concluded that he resolution. BuzzFeed.com, June 30. court said that Taddeucci and McCall was entitled to asylum in Hungary. should not be treated the same as an unmarried heterosexual couple, because ORGANIZATION OF AMERICAN Italy provided no legal recognition ASCENSION ISLAND – The Ascension STATES – The creation of a core group for same-sex couples at the time they Island Council voted in favor of on the promotion of the rights of LGBTI applied for the residence permit. In marriage equality on May 31, according person was announced on June 15 deciding to treat gay couples the same as to a report by internet journalist Rex during the 46th regular session of the unmarried straight couples without any Wockner, who also reports that the General Assembly of the Organization form of spousal status available for gay population in this British dependency of American States. Brazil initiated the couples, said the court, the State violated island is about 880 people. Wockner move with the support of Argentina, its non-discrimination obligations under noted that same-sex marriage became Canada, Chile, Colombia, the United the Convention. This is, of course, a legal in Pitcairn Islands (population 48) States, Mexico and Uruguay. The group transitional problem, because recently in May 2015, in Jersey (Channel Islands) is committed to support OAS efforts Italy has legislated to create domestic there was a 37-4 preliminary vote in aimed at ensuring LGBT human rights partnerships for same-sex couples that favor of in September 2015, and the in member countries. The statement will afford residence rights. Isle of Man (population almost 86,000) announcing formation of the group voted 6-3 to legalize marriage equality specifically referenced the Orlando in April 2016. massacre. Mena Report, June 18. EUROPEAN COURT OF HUMAN Ironically, although the government of RIGHTS – The Court ruled in Case of Brazil has staked out an affirmative gay O.M. v. Hungary, No. 9912/15, that it AUSTRALIA – The High Court of rights position, news reports reflect an was improper for Hungarian authorities Australia reversed a jury conviction “epidemic” of anti-gay violence in the to hold a gay asylum applicant from Iran under Crim. Code section 317(b) country by gangs that the government in detention pending the outcome of his (intentional transmission of a serious seems unable to control, according to a case, since his detention was not justified disease) in Zaburoni v. R, (2016) 330 July 6 report in the New York Times. by any of the reasons in the “exhaustive ALR 49, finding that the evidence lists” of Article 5, Section 1 of the presented at the trial would not support Convention. The authorities had stated the jury in concluding that the defendant, EUROPEAN COURT OF HUMAN that he was being detained to prevent him an HIV-positive man, had intended to RIGHTS – The Court ruled in Taddeucci from fleeing the jurisdiction while his transmit the virus to his female sexual and McCall v. Italy, No. 51362/09, that case was pending. The Court considered partner. It was not enough for the Italy violated the European Convention this illogical; why would the man flee prosecution to show that the defendant on Human Rights by refusing to allow a the jurisdiction if he had specifically knew he was HIV-positive and was gay man from New Zealand who is the sought asylum in the country? “The aware that the virus could be transmitted same-sex partner of an Italian national to Court reiterates that Article 5 enshrines sexually. The man had pled guilty to settle in Italy with his partner. The men a fundamental human right, namely an alternative count under Crim. Code have been living as a couple since 1999, the protection of the individual against section 320, which makes it an offence and decided to move to Italy in 2003 arbitrary interference by the State with to do “grievous bodily harm to another” because of Mr. Taddeucci’s poor health. his or her right to liberty.” The relevant and would subject him to a maximum McCall received a temporary residence provisions “contain an exhaustive penalty of 14 years. The prosecution permit as a student, but the police list of permissible grounds on which insisted on continuing the case under rejected his subsequent application for a individuals may be deprived of their section 317(b), which would subject permit as a family member. The district liberty and no deprivation of liberty the defendant to a maximum prison court upheld their appeal, but the Court will be lawful unless it falls within term of life, and the jury convicted on

320 LGBT Law Notes Summer 2016 INTERNATIONAL this. The High Court agreed with Mr. organize a “roundtable” with the major murders in various parts of the country Zaburoni that “knowledge or foresight hospitals to see if they can come up which appear to have targeted victims of result, whether possible, probable with a “simpler and consistent method because of their sexuality. It reported or certain, is not a substitute in law for of dealing with these matters. I would that a local gay rights group has counted proof of a specific intent under the Code ultimately envisage an application that nearly 1600 murders in hate-motivated . . . Where the accused is aware that, could be made relatively simple by attacks since January 2011, averaging save for some supervening event, his consent.” ABC Premium News, July 5. one anti-gay murder a day in a country or her conduct will certainly produce of 200 million people. This despite a particular result, the inference that the fact that the legal climate for gay the accused intended, by engaging in BERMUDA – Bermuda held a people in Brazil has become very that conduct, to produce that particular referendum on June 23 on same-sex liberal, including marriage equality, gay result is compelling. Nonetheless, marriage, in which opponents heavily people adopting children, and formal foresight that conduct will produce a outvoted proponents, but because fewer protection against discrimination. On particular result as a ‘virtual certainty’ than 50% of the island’s registered voters the other hand, LGBT rights advocates is of evidential significance and under showed up, the result is not binding report that the police have not been the Code it remains that the trier of on the government. Former Attorney- particularly cooperative, often omitting fact must be satisfied that the accused General Mark Pettingill, a proponent anti-gay animus from official reports meant to produce the particular result.” for marriage equality, announced that on murders. The country is generally * * * The Parliamentary election held he will represent two same-sex couples experiencing a sharp rise in street crime in Australia has returned the Liberal who will apply for a marriage license and homicides. There is one openly gay government to office. Prime Minister and then file suit when they are turned member of the Congress, but he said that Turnbull reiterated his commitment to down, asserting that denial of the right a large coalition of Christian Evangelical hold a national plebiscite on the subject to marry violates the Human Rights legislators has blocked proposed hate of same-sex marriage prior to any vote in Act, which they will argue must take crimes legislation. Local groups also Parliament, but the leader of the Labour priority over the Marriage Act. Royal report that transgender Brazilians are Party, which came very close to denying Gazette, June 29. at heightened risk for violence, and that the Liberals a majority, announced some assailants have videotaped their consideration of pushing a private assaults against transgender people and members vote in hopes of persuading BOSNIA & HERZEGOVINA – The posted them online. the P.M. that the overwhelming support Parliamentary Assembly voted on July for marriage equality in public opinion 14 to amend the Anti-Discrimination polls would justify saving the expense Law to make explicit protection against CAMEROON – The Minister of Public and divisiveness of a plebiscite and discrimination because of sexual Health, Andre Mam Fouda, announced allowing a free vote in the Parliament, orientation or gender identity. Indeed, on June 23 that HIV/AIDS screening which many observers suggest would going beyond what other countries have will now be compulsory for anyone be successful, as several opponents of done, the amended law also expressly seeking medical service, as part of the marriage equality were defeated for protects intersex people, and improves new direction for combatting the HIV reelection and several new supporters the procedures available for individuals epidemic in the country and improving were successful in winning seats. * * * who confront discrimination to invoke management and care for those living Family Court Chief Justice Diana the assistance of the government. with HIV infection. Agence de Presse Bryant told the Australian Broadcasting Local activists claimed that the express Africaine, June 25. Corporation that she hopes to change protection for intersex people was a first the way transgender children access for South-East Europe. The steps were hormone treatment because the current taken in accord with requirements of the CANADA – The Court of Appeal for process, requiring approval of a Family European Union for countries seeking Ontario ruled on June 29 in Trinity Court judge, is “difficult and stressful” to obtain or maintain membership. Western University v. Law Society of for the children. She said that Australia Upper Canada, 2016 ONCA 518, that the is the only country in the world that Law Society was within its rights to deny requires a court order in addition to BRAZIL – The New York Times reported accreditation to TWU’s new law school. expert medical approval, for children to on July 5 that Brazil is experience an The school requires staff and students access hormone therapy. She has asked “epidemic of anti-gay violence.” The to adhere to a university requirement the Attorney General’s Department to article recites accounts of assaults and that they sign a “community covenant”

Summer 2016 LGBT Law Notes 321 INTERNATIONAL that forbids sex outside of heterosexual above. The province has also started a series of recommendations made marriage. While the school claims that issuing health cards that do not display by a consulting group specializing in it does not discriminate because of information about the person’s sex on transgender issues, including gender- sexual orientation, the covenant raised the front of the card, and ServiceOntario neutral public restrooms and sensitivity concerns by the Law Society, which will issue new cards without the sex training for city government staff. A maintains its own non-discrimination identifier at no charge. The government team will be appointed by the Council policy as an ethical standard for the is also launching public consultations to to oversee implementation and report profession. Refusal of accreditation develop policies on how the government annually on progress, with changes means that the law school’s graduates collects, uses and displays sex and being implemented over the next 6-18 cannot gain admission to practice law gender information on government forms months. (Construction and remodeling in Ontario which, given the structure of and products, according to a June 30 of facilities may take some time.) the profession in Canada, is tantamount news release from the government of bc.ctvnews.ca, July 14. to saying that they are excluded from Ontario. Canadian Government News. practice where most of the nation’s major litigation takes place. TWU is CANADA – Health Canada announced an evangelical Christian private school, CANADA – A meeting the synod of the that the deferral period for gay men to which has been seeking accreditation Anglican Church of Canada narrowly donate blood has been reduced from from law societies throughout Canada approved a resolution to allow same- five years to one year, consistent with for its new law degree program. The sex marriages to be performed in the the trend in other countries. The new Law Society’s governing body voted 28- denomination’s churches on July 11 – rule will take effect on August 15, 2016. 21 to deny accreditation, on the ground but at first the news reports said that the Health Minister Jane Philpott told that the school’s policies discriminate measure had been defeated by one vote. the CBC that the Liberal government based on sexual orientation, gender, There are three voting orders within hopes to reduce the waiting period even marital status and religion, conflicting the church – lay, clergy and bishops – further, acknowledged that the new with the ethical standards of the legal and the resolution needed at least 2/3 policy would still disqualify many gay profession in Ontario. The Canadian support within each of these groups to men from donating blood, and stated: Bar Association intervened in the case pass. It achieved that with the lay voters “I would rather see Canada take a step in support of the Law Society. The and the bishops, but at first appeared in the right direction than stand still.” Court found that a “reasonableness” to fall one vote short with the clergy. Digital Journal, June 21. standard applies to the LSUC’s After the vote was announced, however, decision, as applied to the balancing several members said that their votes of freedom of religion and equality had not been properly registered, and CARIBBEAN COURT OF JUSTICE requirements under the nation’s Charter a reexamination on July 12 revealed – The CCJ dismissed a suit brought of Rights, and that LSUC met that that all three groups had achieved the by Jamaican gay activist Maurice standard. The Court of Appeal decision requisite margin. The resolution must Tomlinson challenging the validity of conflicts with Superior Court rulings be affirmed at the next synod meeting statutes in Belize and Trinidad & Tobago in British Columbia and Nova Scotia, in 2019 in order to become “church that on their face prohibit the entry of where courts overturned denials of law,” but some Bishops and clergy homosexuals into those countries. The accreditation by local law societies, so indicated that they were prepared to act court accepted an argument on behalf there are some places in Canada where on it in the interim, going ahead with of the respondent countries that they did TWU graduates could practice unless same-sex marriages in their churches. not deny entry to homosexual citizens those rulings were to be overturned. Canadian Press, July 12. * * * Prime of other countries that are signatory to Globeandmail.com, June 29. Minister Justin Trudeau, an outspoken the governing rules of the Caribbean supporter of LGBT rights, made history Community (CARICOM). The court by raising a rainbow flag on Parliament accepted an argument from Belize CANADA – The government of Ontario Hill in Ottawa and then marching in a that its immigration law is intended announced that it is introduced gender- Pride Parade, the first Canadian head of only to bar individuals who engage neutral driver’s licenses and health government to do so. * * * Vancouver in prostitution, and from Trinidad & identification cards. Beginning early became the first Canadian city to Tobago that it does not in practice bar in 2017, drivers will be able to select adopt an inclusive transgender policy homosexuals from entering the country. one of three designations: M for Male, by vote of the City Council on July Although his case was dismissed, F for Female, and X for neither of the 13. The vote approves implementing Tomlinson declared it a victory because

322 LGBT Law Notes Summer 2016 INTERNATIONAL the two countries had gone on record National Health and Family Planning GREECE – Agence France Presse stating that their statutory bans were Commission to explain its reasons for English Wire reported on June 3 that not literally enforced. “It is now up to requiring a quarantine, contending that a gay Syrian man whose asylum claim the international community to press this violates national policy. Global was rejected by Greece would be sent to for the repeal of this law so that it will Times, June 24. Turkey under a controversial agreement be clear in relation to non-nationals brokered by the European Union, under of the CARICOM region,” declared which failed asylum seekers would be Tomlinson. The court called upon the COSTA RICA – The Social Security sent to Turkey in light of the migrant respondent states to voluntarily amend Agency announced on June 10 that it crisis affecting Europe. The man’s their laws to harmonize with CARICOM will extend pension payments to the application for asylum was rejected treating obligations, reported dailyxtra. surviving partner of same-sex couples and a Board of Appeal ruled that it was com, June 10. when one member has died. The safe for him to return to Turkey, but a country’s LGBT community has been representative of the Greek Council lobbying for this change for many years. for Refugees said that they would try CHINA – Yu Hu (a pseudonym) has sued A member of the agency’s board, Jose to appeal the ruling further. The man a hospital in central Henan Province for Luis Loria, said that he was “satisfied” claimed to have fled Istanbul after living subjecting him to treatment intended to that gay people would be treated equally there several years because he had been “cure his sexual orientation disorder,” to heterosexual widows or widowers, threatened due to his sexual orientation. reported China News Service on according to a June 10 report by Agence Previously the board had granted June 14. He alleges that members France Presse English Wire. asylum to people in similar situations, of his family forcibly admitted him but the system has been overwhelmed to the hospital after he divorced his by the flood of migrants from Syria. wife, tied to a bed, medicated, and CZECH REPUBLIC – The Constitutional threatened with violence. He was Court has overturned a law that banned released from the hospital after his individual gays and lesbians living in INDIA – The state of Kerala has same-sex partner contacted LGBT a registered partnership from adopting become the first to announce a pension rights organizations, which notified children. The Court said that the ban scheme for transgender individuals over the police that he was being detained was discriminatory because individual 60 years of age, in a proposed new state unlawfully in the hospital. His lawyer gays and lesbians who did not live in a budget. Kerala was also a leader in sued in the local court, alleging registered partnership were allowed to establishing a state Transgender Policy violation of personal freedom and adopt. However, the opinion does not last year marking an affirmative effort being subjected to violence. He said, approve joint adoptions by same-sex by the government to hire transgender “They did it simply because I am gay. couples. Associated Press, June 28. people to fill civil service vacancies, I don’t know how many other people and to end stigma and discrimination have been treated like this. They must against transgender residents. Merinews, be held accountable.” There is some FRANCE – Following the example July 9. * * * The Supreme Court on precedent for the case. The report says of the U.K. and the U.S., the French June 29 refused to take up a new petition that in 2014 a court in Beijing ordered a government announced on July 11 challenging the validity of the colonial- group of psychologists in Chongqinq to that it was modifying its regulations era sodomy law, stating that it would refer apologize to a man for subjecting him on blood donation to end the lifetime the petition to the Chief Justice to decide to sexual orientation change efforts. disqualification of anybody who had whether it should be heard together * * * A local labor dispute arbitration engaged in gay sex. Gay men will be with several curative petitions that are committee in Guangzhou rejected a allowed to donate blood provided they pending before a panel of the court. petition by an HIV-positive man to be certify that they have not engaged in Indianexpress.com, June 29. * * * The reinstated to his job, taking the position sexual activity with another man for at sodomy law, Section 377 of the Indian that “infectious disease prevention and least a year prior to the donation date. Penal Code, is still being enforced, as treatment regulations stipulating that The one-year rule has been criticized as exemplified by a ruling on June 29 by HIV-positive individuals should be unrealistically long, given the current the Bombay High Court, which rejected quarantined until they are proven to no level of accuracy of HIV-antibody a plea filed by a 33-year-old man who longer been infectious are still in effect.” testing and the likelihood that most gay is subject to criminal proceedings for The individual, using the pseudonym men will continue to be excluded under a consensual sexual relationship with a Ah Ming, said that he would ask the its application. New Europe, July 12. 27-year-old man. “A division bench of

Summer 2016 LGBT Law Notes 323 INTERNATIONAL

Justice Abhay Oka and Justice Amjad is intended to aid same-sex couples MALTA – The government announced Sayed said it cannot be said it is not an in making housing applications and on July 8 that all ministries are offence against society, especially after being recognized as next-of-kin in supposed to introduce gender-neutral the Supreme Court upheld the validity relevant situations. Application form restroom facilities in their buildings by of the penal section,” reported the are available on the city’s website, and September, in order to “ensure a non- Hindustan Times on June 30. The police submissions were accepted beginning judgmental or exclusive environment for became involved because the man’s wife July 11. Kyodo News, July 8. all,” according to an official statement. discovered evidence of the relationship While there would still be male and and reported it. * * * The Supreme Court female only facilities, at least a third issued a statement on June 30, clarifying KENYA – In a ruling that drew outraged of all restroom facilities would have that its 2014 ruling concerning rights comments from the international to be designated as gender neutral. of transgender people was not meant human rights community and Under the country’s recently enacted to affect the rights of lesbians, gay men suggestions that international treaties Gender Identity Law, individuals are not or bisexuals. The Ministry of Social be amended expressly to address the required to obtain medical intervention Justice and Empowerment had sought issue, Judge M.J. Anyara Emukule of in order to effect a legal change of gender clarification as to whether LGB people the High Court of Kenya ruled that anal based on their self-determined gender were included in the Court’s mandate examinations of individuals charged identity. Malta is the smallest European to treat transgenders in the Other with homosexual acts are not a violation Union nation, but now occupies the “top Backward Classes category for purposes of human rights under the nation’s spot” on the Rainbow Map of Europe of affirmative efforts in education and constitution or international treaty charting LGBT-friendly government employment. The Pioneer, July 1. obligations. He rejected the contention policies. dpa International, July 8. of the petitioners that they had not freely consented to the examinations, ISRAEL – A planned Pride March in and asserted that “the right to fair trial” MEXICO – Another state heard from. Beersheba was cancelled by organizers guaranteed in the constitution “does The Morelos state congress approved a in response to an order from Israel’s not, with respect, extend to excluding reform of the state constitution to allow Supreme Court, granted in response to an accused from medical examination.” for same-sex marriage. This was subject an application by security officials, to He asserted: “on matters of sodomy or to approval by the municipalities within abandon the planned parade route for acts against the order of nature as is the state, a majority being required. a less prominent route. The court said envisaged in Section 162 of the Penal Under the rules for this procedure, a that police intelligence assessments Code, rectal or anal examination is municipality that failed to act on the suggested that a march along the according to current medical science, proposal would be counted as a yes planned route would incite a violent and constitution of the human anatomy, vote. Somewhat controversially, the response, and Israeli security officials the only way of examination to show congress declared that the measure are now gun-shy as a result of anti-gay whether the anus is dry or has been had been adopted, based on its claim violence resulting in a murder at last subjected to application of medical that of the State’s 33 municipalities, year’s Jerusalem Pride. The organizers lubricants for ease of anal penetration. 12 municipalities voted in favor, 15 said they would hold a protest rally The anus, unlike the vagina, has no were opposed, 5 failed to act, and one instead of a march. This was to have natural lubrication. There is no other obtained an extension because of a delay been Beersheba’s first Pride March. part of the human body which to carry in notification. The five that failed to act Thai News Service, July 15. out the medical examination. Whether were automatically being counted as the examination was reasonable or not “yes” votes and establishing a majority is a question of fact which only the trial to amend the constitution. Groups JAPAN – Naha City, the capital of court or as the case may be the appellate opposed to the measure protested, Japan’s Okinawa Prefecture, has become Court after ascertaining all the facts claiming that some of the “fictional” the fifth local government in Japan to may determine and, whether or not yes votes came from municipalities that adopt a measure recognizing same-sex the person who took the samples was had actually voted no but had failed to partnerships as equivalent to marriage. ignorant or negligent. Was there, was submit the certification of their vote by Same-sex couples can obtain certificates there no anal sex? Those are questions the deadline, and threatening to sue. recognizing their partnerships provided before the trial, not the Constitutional, Morelos became the 10th state to be both members of the couple are age court.” COL & GMN v. Kwale, Petition added to the marriage equality list, in 20 or older. The certification system No. 21 of 2015 (June 16, 2016). addition to Mexico City, and was said

324 LGBT Law Notes Summer 2016 INTERNATIONAL to be the first to do so by amending its of Health proposed the new law. Plus abstentions. This is expected to open state constitution. This account is based Media Premium Official News, June 8. up the possibility for second parent on reporting by internet journalist Rex adoptions by same-sex couples raising Wockner, who maintains a running children. NELFA, June 17. * * * Swiss commentary on his blog about the PAKISTAN – Local media reported health authorities announced their unfolding story of marriage equality in on June 27 that 50 clerics had issued a intention to end the lifetime ban on Mexico. * * * Coalescing around the fatwa (religious decree) providing that blood donation by gay men, moving to ongoing struggle to spread marriage marriage with a transgender person a one year deferral period as several equality nationwide, activists have is lawful. According to the fatwa, a other countries have recently done. The formed a new national LGBT rights transgender person having “visible signs theory is that if a gay man has abstained movement organization, MOViiMX, of being a male” can marry a woman, from sex for at least a year, it is highly which can be contacted through the and a transgender person having “visible unlikely that his blood will carry HIV website www.moviimx.org. signs of being a female” can marry a if it tests negative using currently man. But somebody who carries “visible available screening tests. thelocal.ch, signs of both genders” must remain June 21. NORTHERN IRELAND – Health single. The fatwa also condemned any Minister Michelle O’Neill announced act intended to “humiliate, insult or on June 2 that Northern Ireland was tease” transgender people, and declared TAIWAN (REPUBLIC OF CHINA) following the lead of the U.K. in lifting that funeral rituals for transgender – Changhua County is offering same- the lifetime ban on men donating blood. people should be consistent with those sex couples the right to record their Henceforth there would be a one-year exhibiting the same gender traits. Daily partnerships at household registration deferral period, so only men who affirm Regional Times, June 28. offices. Although the record does that they have not had sex with another not create legal rights, it is symbolic man during the previous 12-month of the local government’s support in period will be allowed to donate blood. PORTUGAL – President Marcelo Rebelo the ongoing struggle to achieve legal WashingtonPost.com, June 2. de Sousa vetoed a law authorizing non- recognition for same-sex couples. The compensated surrogacy where a woman county’s action follows similar measure cannot conceive a child, but approved adopted in Hsinchu County and in the NORWAY – On June 7 the Norwegian a measure allowing lesbian couples cities of Chiayi, Kaohsiun, New Tapei, Parliament approved a new healthcare and single women access to in-vitro Taichung, Tainan, Taipei and Taoyuan. law under which transgender people fertilization services with donated sperm The nine municipalities cover over 75 can self-declare their appropriate legal in order to have children. The surrogacy percent of the nation’s population, and gender. The measure ended requirements legislation had passed by a slim margin to date more than 500 same-sex couples of compulsory psychiatric evaluations, over strong opposition by the Catholic have taken advantage of the right to diagnoses of gender dysphoria and Church, which remains politically register their partnerships. Thai News sterilization surgery as a prerequisite influential in Portugal. An attempt Service, June 30. to recognizing legal gender. A report might be made for a legislative override by Human Rights Watch asserted that of the veto. Surrogacy is controversial this made Norway the fourth country in Europe, with France, Germany and TURKEY – Authorities in Istanbul in Europe to separate medical and Italy prohibiting the practice. Britain, banned an annual gay pride march on legal processes for recognizing gender Ireland, Denmark and Belgium allow purported security grounds. Although identity, the others being Denmark “altruistic surrogacy,” typically where a modern Turkey no longer outlaws and Ireland (through internal political woman does a favor for a woman who private consensual homosexual action) and Malta (in response to a cannot conceive children and is not conduct, gay people in Turkey complain ruling by the European Court of Human compensated for her services apart for of harassment and abuse, especially Rights). According to the report, 41 reimbursement of expenses. Agence as the Erdogan administration has states in Europe have legal gender France Presse English Wire, June 8. been leading the country towards recognition provisions in place, 35 of Islamisation. Erdogan has avoided which require a psychiatric diagnosis addressing gay issues directly. Agence and 24 requiring surgical sterilization SWITZERLAND – The Parliament France Presse English Wire, June 17. before a legal change of status will be voted June 17 in favor of stepchild Early in July there was a failed attempt recognized. The Norwegian Ministry adoption by a vote of 125-86 with 3 by dissidents in the military to stage

Summer 2016 LGBT Law Notes 325 INTERNATIONAL / PROFESSIONAL a coup. How this might affect future viciously assaulted with his partner, who associate, Ezra Young, will join her at relations between the government and died as a result of the injuries inflicted TLDEF as a staff attorney. the LGBT community was uncertain. upon them.” It apparently made not different to U.K. authorities that Nigeria is officially one of the world’s most Having wound up affairs at Freedom UNITED KINGDOM – The Women outspokenly anti-gay countries. * * * to Marry, Executive Director EVAN and Equalities Minister, Nicky Morgan, The new Prime Minister, Theresa May, WOLFSON is joining the international announced on July 9 that the government announced the appointment of Justine law firm Dentons as senior counsel. would undertake a review of the Greening to be Education Minister. He hopes to advise the firm on its Gender Recognition Act with an eye to Greening, who had recently come out as internal human rights policies as well as improving the process for determining a lesbian, is the first Education Minister providing counsel to clients on similar legal gender without reference to who is a product of a comprehensive matters. In recent months Wolfson has surgical procedures. The review is state secondary school. traveled to several different countries, in intended to reduce “unnecessary red some cases at the invitation of local U.S. tape” and adopt a streamlined process embassies, to speak with local activists that will be easier for transgender about strategies for achieving marriage residents to navigate. The goal will be PROFESSIONAL NOTES equality. He will be based in the firm’s to achieve legal and social equality for New York City office. Wall Street transgender people. European Union THE NATIONAL LGBT LAW Journal Law Blog, June 23. News, July 9. The article reporting ASSOCIATION’S LAVENDER LAW on this, although dated July 9, did CONFERENCE will be held in not say anything about whether the Washington, D.C., on August 4-6. On June 7, openly transgender Judge change in leadership flowing from the The keynote speaker will be STUART VICTORIA KOLAKOWSKI was re- Brexit vote would affect these plans, DELERY, whose recent service as elected for a seat on the Alameda possibly because as of that date it was Acting Associate Attorney General, County Superior Court. She is the expected that the Cameron government the number three position in the Justice only openly transgender person to hold would function until October as the Department, made him the highest elective office in California. When Conservative Party determined who ranking openly gay attorney in that she was first sworn in, she became the would succeed David Cameron as Department’s history. The event will second openly transgender trial judge in Prime Minister. By July 12, however, all be held at the Renaissance Washington the nation, as Houston, Texas, Associate competition to Theresa May, the Home D.C. Downtown Hotel. Municipal Court Judge PHYLLIS FRYE Secretary, had fallen by the wayside, was appointed and sworn in between and she took office on July 13. * * * Judge Kolakowski’s first election and The Bristol Evening Post reported TLDEF –THE TRANSGENDER LEGAL her inauguration, thus becoming the July 6 that a gay man from Nigeria DEFENSE & EDUCATION FUND first openly transgender sitting judge! who had been denied asylum in the announced that its new Executive U.K. was immediately imprisoned upon Director is JILLIAN WEISS, a being delivered back to Nigeria, and transgender New York attorney. Weiss is Former U.S. Solicitor General DONALD authorities there took the resettlement a tenured professor at Ramapo College. B. VERRILLI, JR., who argued for money that the U.K. Home Office had She earned her law degree at Seton the Obama Administration before the given to him upon his departure. He Hall University. She maintained a law Supreme Court to invalidate DOMA was held for seven days before being practice in addition to her teaching job, and strike down state bans on same- released, presumably with a warning and has litigated precedent-setting cases sex marriage, was the featured keynote to refrain from violating the country’s on behalf of transgender plaintiffs. She is speaker at Lambda Legal’s annual sodomy law, which carries potential only the second ED in the organization’s reception in Washington, D.C., on June 15. penalties of imprisonment up to 14 years history, following the retirement of its (Previous speakers at this event included or stoning (quite Biblical). That the founding director, Michael Silverman. Attorneys General ERIC HOLDER and British Home Office sees no ground for For their work advancing the legal LORETTA LYNCH.) Lambda’s National asylum for gay refugees from Nigeria rights of transgender people, both Weiss Director of Constitutional Litigation, is incredible but unfortunately true, and Silverman have received the Arthur SUSAN SOMMER, was the other even in a case such as this, where the S. Leonard Award from the New York featured speaker at the event, held at the petitioner had fled Nigeria after “being City Bar Association. Weiss’s law firm Newseum.

326 LGBT Law Notes Summer 2016 The LGBT BAR ASSOCIATION OF GREATER NEW YORK 2016 Pride Reception on June 16 included a PUBLICATIONS NOTED Roundtable Discussion on the Equality Act now pending in Congress. Panelists were former LeGaL President and 1. Alvare, Helen M., The Opposite of 11. Calabresi, Steven G., and Genna L. Sinela, Law Notes Editor ART LEONARD, Anarchy and the Transmission of Faith: The Same-Sex Marriage Cases and Federal former NYC Council Speaker Christine The Freedom to Teach After Smith, Jurisdiction: On Third-Party Standing and Quinn, and transgender rights activist Hosanna-Tabor, Obergefell, and the Why the Domestic Relations Exception to Ascendancy of Sexual Expressionism, 53 Federal Jurisdiction Should be Overruled, and Democratic National Committee San Diego L. Rev. 1 (Winter 2016) (Should 70 U. Miami L. Rev. 708 (Spring 2016). Executive Committee Member Babs religious schools be able to discriminate 12. Calvert, Clay, Difficulties and Dilemmas Siperstein. U.S. Rep. David Cicilline in dealings with teachers based on the Regarding Defamatory Meaning in (D-R.I.), lead sponsor of the bill in schools’ religious position on issues like Ethnic Micro-Communities: Accusations the House, intended to participate, but homosexuality and same-sex marriage?). of Communism, Then and Now, 54 U. weather conditions grounded his flight 2. Bahadur, Rory, Individual Sovereignty, Louisville L. Rev. 1 (2016). from D.C. Freer Sex, and Diminished Privacy: 13. Cenziper, Debbie, and Jim Obergefell, Love How an Informed and Realistic Modern Wins (William Morrow (HarperCollins): Sexual Morality Provides Salvation from New York, 2016) (inside account of “Greene” cont. from pg. 273 Unjustified Shame, 8 Elon L. Rev. 245 the Ohio lawsuit that became part of (2016). the Supreme Court’s marriage equality 3. Barak-Corren, Netta, Does decision; Fox Pictures has purchased Interestingly, it appears that the Antidiscrimination Law Influence movie rights). court rejected Greene’s assertion Religious Behavior? An Empirical 14. Chang, Robert S., Will LGBT because she did not allege any of the Examination, 67 Hastings L.J. 957 (May Antidiscrimination Law Follow the Course three supporting factors discussed in 2016). of Race Antidiscrimination Law?, 100 Butler, even though the Butler court 4. Bendora, Ariel L., and Hadar Minn. L. Rev. 2103 (May 2016) (points had weighted the nine factors equally Dancig-Rosenberg, Unconstitutional out how the courts have significantly and had not set a bright-line threshold Criminalization, 19 New Crim. L. Rev. 171 undercut laws against race discrimination, necessary to establish an employment (Spring 2016). at least in terms of attempting to deal with relationship. These observations were 5. Bix, Brian H., Book Review, Katherine discrimination against people of color, and not lost on Chief Judge William Byrd Franke, Wedlocked: The Perils of Marriage asking whether statutory and constitutional Traxler Jr., who dissented and clarified Equality – How African Americans and provisions that might provide protection that the first three factors listed in the Gays Mistakenly Thought the Right to against discrimination may be undercut by Butler test were intended to have the Marry Would Set Them Free, 65 J. Legal judicial interpretation as well). most weight. Furthermore, he believed Educ. 983 (Summer 2016). 15. Coenen, Michael, Combining 6. Blitz, Marc J., Free Speech, Occupational Constitutional Clauses, 164 U. Pa. L. that Greene alleged enough facts to Speech, and Psychotherapy, 44 Hofstra Rev. 1067 (April 2016) (prime examples: satisfy these three most important L. Rev. 681 (Spring 2016) (takes on the Windsor and Obergefell, combining due factors: that Harris (1) reserved the split between 9th and 3rd Circuits about process and equal protection principles). authority to hire and fire; (2) required whether anti-SOCE laws raise issues about 16. Cohen, Yitshak, The Development of the day-to-day supervision of Greene, and 1st Amendment rights of psychotherapists). Issue of Same-Sex Couples Under Israeli even designated an employee to do so; 7. Boso, Luke A., Acting Gay, Acting Law, 30 BYU J. Pub. L. 177 (2016) (explains and (3) furnished the equipment she Straight: Sexual Orientation Stereotyping, how the unique nature of the Jewish state – used and her place of work. 83 Tenn. L. Rev. 575 (Winter 2016). both religious and secular – has resulted in As demonstrated by the 4th Circuit 8. Brady, Heidi L., and Robin Fretwell the de facto emergence of same sex civil and its creation of a nine-factor test, Wilson, The Precarious Status of Domestic marriage in Israel). both state and federal definitions Partnerships for the Elderly in a Post- 17. Day, Terri R., and Danielle Weatherby, of employment currently fail to Obergefell World, 24 Elder L.J. 49 (2016). The Case for LGBT Equality: Reviving the encompass all the various types of 9. Brito, Mario, On an Alternative to a Political Process Doctrine and Repurposing contracts and arrangements existing Punitive State in Response to a Modern the Dormant Commerce Clause, 81 Brook. between workers and their clients. Understanding of the HIV/AIDS Epidemic L. Rev. 1015 (Spring 2016) (analysis of state in Florida, 40 Nova L. Rev. 285 (Spring laws that forbid localities from adopting Until these definitions are broadened to 2016). anti-discrimination ordinances that cover encompass the employment landscape 10. Calabresi, Steven G., and Hannah M. sexual orientation and gender identity). as it is, protections enacted against Begley, Originalism and Same-Sex 18. DeCew, Judith Wagner, Privacy and Its employment-related discrimination— Marriage, 70 U. Miami L. Rev. 648 (Spring Importance with Advancing Technology, whether it is based on sexual orientation 2016) (Professor Calabresi, a leading 42 Ohio N.U. L. Rev. 471 (2016). or any other type—fall short of the modern originalist scholar, concludes that 19. DeGirolami, Marc O., Virtue, Freedom, legislation’s intended goal: to provide an originalist view of the 14th Amendment and the First Amendment, 91 Notre Dame workplace victims a way of obtaining would lead to invalidating bans on same- L. Rev. 1465 (April 2016) (Symposium: relief. – Timothy Ramos, NYLS ‘19 sex marriage). Religious Liberty and the Free Society:

Summer 2016 LGBT Law Notes 327 Celebrating the 50th Anniversary of 29. Greene, Daniel, The Right to “Cure” a 42. Margolis, Jaime B., Two Divorced Parents, Dignitatis Humanae). Child’s Homosexuality?: A Constitutional One Transgender Child, Many Voices, 20. Dhooge, Lucien J., Public Accommodation Analysis of State Laws Banning Sexual 15 Whittier J. Child & Fam. Advoc. 125 Statutes, Sexual Orientation and Religious Orientation Change Efforts on Minors, 67 (Spring 2016). Liberty: Free Access or Free Exercise?, 27 Fla. L. Rev. F. 176 (2016). 43. Markard, Nora, Dropping the Other Show: U. Fla. J.L. & Pub. Pol’y 1 (April 2016). 30. Hellman, Deborah, Two Concepts of Obergefell and the Inevitability of the 21. Erickson, Tyler, Legalization of Gay Discrimination, 102 Va. L. Rev. 895 (June Constitutional Rights to Equal Marriage, Marriage – United States Supreme Court 2016) (attempting to unpack the conflation 17 German L.J. 509 (June 1, 2016) Declares it Unconstitutional for States of due process and equal protection in (Special Section – Same-Sex Marriage: to Deny Same-Sex Couples the Right to Justice Kennedy’s opinion in Obergefell v. Comparative Reflections). Marry: Immediate Impact of Gay Marriage Hodges). 44. Martinez de Aguirre, Carlos, The for North Dakota – Obergefell v. Hodges, 31. Hessick, Carissa Byrne (editor), Refining Evolution of Family Law: Changing the 135 S. Ct. 2584 (2015), 91 N.D. L. Rev. 219 Child Pornography Law: Crime, Language, Rules or Changing the Game?, 30 BYU (2015). and Social Consequences (Univ. of J. Pub. L. 231 (2016)(argues for a shift 22. Fichera, Massimo, Same-Sex Marriage and Michigan Press). in focus of family law from marriage- the Role of Transnational Law: Changes in 32. Horwitz, Paul, Against Martyrdom: A centered to child-centered). the European Landscape, 17 German L.J. Liberal Argument for Accommodation 45. Movsesian, Mark L., Of Human Dignities, 383 (June 1, 2016) (Special Section - Same- of Religion, 91 Notre Dame L. Rev. 1301 91 Notre Dame L. Rev. 1517 (April 2016) Sex Marriage: Comparative Reflections). (April 2016) (Symposium: Religious (Symposium: Religious Liberty and 23. Fleming, James E., Sotirios A. Barber, Liberty and the Free Society: Celebrating the Free Society: Celebrating the 50th Stephen Macedo and Linda C. McClain, Gay the 50th Anniversary of Dignitatis Anniversary of Dignitatis Humanae). Rights and the Constitution (Foundation Humanae). 46. Paulsen, Michael, Checking the Court, 10 Press, June 2016; ISBN-13: 9781634602686) 33. Jones, Brian Christopher, Disparaging N.Y.U. J. L. & Liberty 18 (2016) (accepting (casebook focusing on “controversies over the Supreme Court, Part II: Questioning the argument of the dissenters that the constitutional interpretation leading up to Institutional Legitimacy, 2016 Wis. L. majority opinion in Obergefell v. Hodges the United States Supreme Court’s holding Rev. 239 (2016) (controversial decisions, was “lawless,” what checks might there be in Lawrence v. Texas (2003) and Obergefell including Citizens United, Hobby Lobby, on the Supreme Court’s “act of will”?). v. Hodges (2015)”, designed for both liberal and Obergefell, have led to widespread 47. Pedrioli, Carlo A., Judicial Neutrality arts undergraduates and law students). disparagement of the Supreme Court, Awash with Ideology: Justice Scalia, 24. Graber, Mark, The Declaration of sometimes by liberals, sometimes by Sexual Orientation, and Rhetorical Independence and Contemporary conservatives, that is sapping the Court’s Personae, 21 Tex. J. on C.L. & C.R. 183 Constitutional Pedagogy, 89 S. Cal. L. institutional legitimacy in popular opinion). (Spring 2016) (takes on the nasty Scalia Rev. 509 (March 2016) (suggests that 34. Joslin, Courtney G., Marriage Equality and dissents in the major LGB rights cases Declaration of Independence should be its Relationship to Family Law, 129 Harv. and shows their blatant hypocrisy; article taught as part of constitutional law studied L. Rev. F. 197 (2016). predates the man’s demise, so it is not in law schools in order to fully understand 35. Kelly, Michelle E., De Facto Parents in technically “speaking ill of the dead”). the scope of the Civil War Amendments, Maryland: When Will the Law Recognize 48. Perdue, Troy J., Trans* Issues for Colleges which were adopted, in part, to overrule the Their Rights?, 46 U. Balt. L.F. 116 (Spring and Universities: Records, Housing, Dred Scott decision). 2016). Restrooms, Locker Rooms, and Athletics, 25. Garcimartin, Carmen, Regulating Marriage 36. Kemnitz, D’Arcy, A Post-Orlando Call to 41 J.C. & U.L. 45 (2015). in a New Environment, 30 BYU J. Pub. L. Protect LGBT Rights, Nat’l L. J., June 20, 49. Perkiss, David Alan, Boy or Girl: Who 217 (2016). 2016. Gets to Decide? Gender-Nonconforming 26. Gardner, James A., Justice Brennan and the 37. Lambert, Regina M., and Abby R. Children in Child Custody Cases, 27 Foundations of Human Rights Federalism, Rubenfeld, Deviant to Dignified: From Hastings Women’s L.J. 315 (Summer 77 Ohio St. L.J. 355 (2016). Campbell v. Sundquist to Tanco v. Haslam 2016). 27. Garvey, John H., Two Aspects of Liberty, – The Progression of LGBT Rights & 50. Pimentel, David, The Impact of Obergefell: 91 Notre Dame L. Rev. 1287 (April 2016) Marital Equality in Tennessee, 83 Tenn. L. Traditional Marriage’s New Lease on (Symposium: Religious Liberty and Rev. 371 (Winter 2016). Life?, 30 BYU J. Pub. L. 251 (2016) (argues the Free Society: Celebrating the 50th 38. Leachman, Gwendolyn, Institutionalizing that proponents of traditional marriage Anniversary of Dignitatis Humanae) Essentialism: Mechanisms of should seize upon Obergefell as the basis (mentions controversies about businesses Intersectional Subordination Within the to eliminate alternatives to marriage, thus that refuse to sell goods or services for LGBT Movement, 2016 Wisconsin Law reviving a flagging institution). same-sex weddings due to religious Review 655. 51. Ragone, Sabrina, and Valentina Volpe, An objections). 39. Lousin, Ann M., Justice Brennan’s Call to Emerging Right to a “Gay” Family Life? 28. Greendorfer, Marc A., After Obergefell: Arms – What Has Happened Since 1977?, The Case Oliari v. Italy in a Comparative Dignity for the Second Amendment, 35 77 Ohio St. L.J. 387 (2016). Perspective, 17 German L.J. 451 (June Miss. C. L. Rev. 128 (2016) (argues that 40. Lyew, Samantha R., Adoption and Foster 1, 2016) (Special Section – Same-Sex Obergefell so eviscerates federalism that Care Placement Policies: Legislatively Marriage: Comparative Reflections). it may be construed to deprive states and Promoting the Best Interests of Children 52. Rosenbaum, Cory J., and Anthony localities of any right to regulate firearms Amidst Competing Interests of Religious Famula, Expanding Protection to LGBT in light of the Supreme Court’s Heller Freedom and Equal Protection for Same- Employees, 52-JUN Trial 42 (June decision; wildly overblown, and full of Sex Couples, 42 J. Legis. 186 (2016). 2016) (reviews EEOC’s efforts to extend intemperate criticisms of the majority 41. Mannheim, Karl, John S. Caragoziana, and protection to LGBT employees under Title opinion in Obergefell, based heavily on the Donald E. Warner, Fixing Hollingsworth: VII). hyperbole of the dissenting opinions in that Standing in Initiative Cases, 48 Loy. L.A. 53. Samuel, Ian, The Counter-Clerks of Justice case). L. Rev. 1069 (2015). Scalia, 10 N.Y.U. J. L. & Liberty 1 (2016)

328 LGBT Law Notes Summer 2016 (The author was the token “liberal” clerk for Justice Scalia during the 2012-13 term; his reminiscence about the role of such “counter-clerks” dwells at length on the 2003 Scalia dissent in Lawrence v. Texas LGBT Law Notes Lesband the unfortunateia factn/ that the counter-Gay Law Notes clerk that term asked to be recused from working on that dissent, which may help to Podcast explain its offensively harsh tone). 54. Sanders, Anne E. H., When, If Not Now? An Update on Civil Partnership Podcast in Germany, 17 German L.J. 487 (June Check out the LGBT Law Notes 1, 2016) (Special Section – Same-Sex Marriage: Comparative Reflections). Podcast each month to hear our 55. Smith, Malcolm K., Lindy Willmott, Editor-In-Chief New York Law Pip M. Trowse, and Ben White, Back to the Future: Prohibiting Surrogacy for School Professor Art Leonard and Singles, Same-Sex and Shorter-Term Matthew Skinner, the Executive Heterosexual Couples in Queensland, 20 J. L. & Medicine 638 (2013) (critique of Director of LeGaL, weigh-in on legislative proposal that would ban, inter contemporary LGBTQ legal issues alia, surrogacy agreements to provide children for same-sex couples). and news. 56. Smith, Steven D., The Tortuous Course of Religious Freedom, 91 Notre Dame Listen through iTunes or at L. Rev. 1553 (April 2016) (Symposium: Religious Liberty and the Free Society: legal.podbean.com! Celebrating the 50th Anniversary of Dignitatis Humanae). 57. Sparling, Tobin A., The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans, 67 Mercer L. Rev. 305 (Spring 2016) (Scalia’s over-the-top dissent contributed to making the majority opinion more directly about gay rights rather than the more abstract “human dignity” concept articulated by Kennedy in his grandiloquent opinion). 58. Stachiw, Michael, The Classically Liberal Roberts Court, 10 N.Y.U. J. L. & Liberty 429 (2016). 59. Tsesis, Alexander, The Declaration of Independence and Constitutional Interpretation, 89 S. Cal. L. Rev. 369 (March 2016) (suggests that the Civil War Amendments were intended to incorporate the human rights articulated in the Declaration of Independence as part of constitutional law). EDITOR’S NOTES 60. Van den Brink, Martijn, What’s in a Name? Some Lessons for the Debate Over the Free Movement of Same-Sex Couples This proud, monthly publication is edited and chiefly written by Prof. Arthur Within the EU, 17 German L.J. 421 (June Leonard of New York Law School, with a staff of volunteer writers consisting of 1, 2016) (Special Section – Same-Sex lawyers, law school graduates, current law students, and legal workers. Marriage: Comparative Reflections). 61. Westreich, Avishalom, An International All points of view expressed in LGBT Law Notes are those of the author, and Perspective on Same-Sex Marriage Post are not official positions of LeGaL – The LGBT Bar Association of Greater New Obergefell (and Some Thoughts on Legal York or the LeGaL Foundation. Positivism as a Means of Reconciliation): The Israeli Case, 30 BYU J. Pub. L. 303 All comments in Publications Noted are attributable to the Editor. (2016). Correspondence pertinent to issues covered in LGBT Law Notes is welcome 62. Zhou, Y. Carson, The Incest Horrible: and will be published subject to editing. Please submit all correspondence to Delimiting the Lawrence v. Texas Right to [email protected]. Sexual Autonomy, 23 Mich. J. Gender & L. 187 (2016).

Summer 2016 LGBT Law Notes 329