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February 03, 2017 Articles

LGBT Cases to Watch Out for in 2017

A number of cases with historic and legal import addressing LGBT rights are working their way through the federal courts.

By Nancy C. Marcus – February 3, 2017

As the new year begins, a number of cases with historic and legal import addressing LGBT rights are working their way through the federal courts. This article addresses some of the most important among them.

Gloucester County School Board v. G.G.
In the U.S. Supreme Court, the case of 17-year-old Gavin Grimm, a transgender high-school student in Virginia who is challenging his school’s restroom policy, is the first transgender-rights case ever to be heard by the Supreme Court, with oral arguments anticipated to be scheduled for March 2017. The policy at issue is like a number of others enacted in recent years targeting transgender youth, prohibiting them from using public facilities that correspond to their gender identity and instead relegating them to “alternative,” inconvenient, and stigmatizing facilities that only they are required to use. In Grimm’s case, although no students complained about his prior use of the boys’ restroom, the school board adopted its new, discriminatory policy after several parents and residents of Gloucester County, Virginia, complained.

Grimm claims that the school’s policy violates the Fourteenth Amendment to the Constitution as well as Title IX of the U.S. Education Amendments of 1972. Grimm’s challenge is supported by both judicial precedent recognizing that protections against discrimination on the basis of sex encompass protections against discrimination based on gender identity, and a federal Department of Education letter explaining that Title IX requires recipients of federal funding to treat transgender students consistently with their gender identity.

Grimm sought a preliminary injunction that would allow him to continue to use the boys’ room, which the district court initially denied. The Fourth Circuit Court of Appeals reversed, sending the case back to the district court for reconsideration, which then entered the requested preliminary injunction. The appeal before the Supreme Court involves not just Grimm’s rights, but also the degree of deference that should be accorded to federal administrative agencies. Specifically, the questions on review are:

(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

The case will almost certainly be decided by a divided Supreme Court (unless there is a 4–4 deadlock, which would let the Fourth Circuit’s ruling stand).

Carcaño v. McCrory
Carcaño, like Grimm, involves the exclusion of transgender students from single-sex, multi-user restrooms and similar facilities, but the case also implicates even broader issues than that, being a challenge to North Carolina’s sweeping anti-LGBT law, known as HB 2. HB 2, in effect, prevents most transgender individuals from using multi-user restrooms in all government buildings in North Carolina, requiring that individuals only use facilities that match the sex on their birth certificates—something that is unsafe for those whose appearance is consistent with their gender identity but not with the sex on their birth certificate. In addition, reminiscent of Colorado’s Amendment 2 (struck down by the Supreme Court in Romer v. Evans), HB 2 also prohibits the enactment of local ordinances that extend anti-discrimination protections beyond those provided by state law. Because North Carolina’s state anti-discrimination statutes do not include protections against sexual orientation or gender-identity discrimination, HB 2 bars such protections statewide.

A cross-section of plaintiffs brought suit in federal court challenging HB 2, on Fourteenth Amendment and Title IX grounds. With the similar issues in G.G. now pending before the Supreme Court, Carcaño also hangs in the balance.

Although the merits of the case have not been decided, and district court proceedings have been stayed until the Supreme Court rules in G.G., Carcaño is already before the Fourth Circuit of Appeals on the issue of the appropriate breadth of preliminary injunctive relief. The district court granted a preliminary injunction under Title IX requiring the University of North Carolina to allow the three transgender plaintiffs to use campus restrooms corresponding to their gender identity pending trial, but denied broader relief to them and other individuals that the plaintiffs sought on equal-protection grounds. That appeal is scheduled to be argued in May.

Barber v. Bryant
Another federal court challenge to anti-LGBT state legislation is Barber v. Bryant, which contests the constitutionality of Mississippi’s HB 1523. The case, which was brought by a cross-section of a dozen individuals and a church adversely affected by the law, is currently before the Fifth Circuit Court of Appeals on the state’s appeal of the district court’s grant of a preliminary injunction and the state’s argument that the plaintiffs in the case lack standing.

The plaintiffs challenged HB 1523 on the grounds that the statute permits and, indeed, encourages businesses, individuals, and even government officials and medical and social-service agencies to discriminate if the discrimination is based on religious or “moral” objections to same-sex couples’ marriages, to the existence of transgender people, or to those in non-marital sexual relationships.

The challenge to HB 1523 is brought on both Fourteenth Amendment Equal Protection and First Amendment Establishment Clause grounds. Not only do the plaintiffs contend that the statute targets specific individuals for discrimination in violation of Equal Protection, but they also argue that it endorses a particular set of religious beliefs in contravention of the First Amendment and in a manner that is harmful to others. The state argues that HB 1523 was not enacted for a religious purpose, but rather, to protect certain “conscientious scruples” it claims have been under attack by the government and society. The district court disagreed, finding that the law had not been enacted for any secular purpose, as required by the First Amendment. Also at issue before the Fifth Circuit at this stage in the case is whether the district court abused its discretion in finding a likelihood of success on the merits of the plaintiffs’ equal-protection claim sufficient to warrant preliminary injunctive relief.

Hively v. Ivy Tech Community College
Hively v. Ivy Tech Community College isa Title VII employment-discrimination case brought by math instructor Kimberly Hively, who claims that she was denied full-time employment and promotions, and ultimately was terminated, because of her sexual orientation. The case is one of a number of cases across the country raising the issue of whether federal bans on sex discrimination also encompass sexual-orientation discrimination. Several federal courts, along with the Equal Employment Opportunity Commission (EEOC), have concluded that sexual-orientation discrimination is a form of sex discrimination (just as many courts and the EEOC have similarly concluded that gender-identity discrimination is a form of sex discrimination). As Hively’s attorneys argue in the case, had she been a man rather than a woman, with a female partner, she would not have faced the same discrimination; thus, the discrimination against her for being in a lesbian relationship is a form of sex discrimination. Although a three-judge panel sided with the defendant, in an uncommon turn of events, the full Seventh Circuit Court of Appeals agreed to rehear the case en banc, which was argued before them on November 30, 2016. Their decision is pending.

Nancy C. Marcus is the Chair of the LGBT Rights Subcommittee of the ABA Civil Rights Litigation Section. She is a senior law and policy advisor at Lambda Legal, which is counsel for the plaintiffs in Carcaño, Barber, and Hively.

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