Transgender workers and gender as a qualification

Maine's Human Rights Commission is set to hear a complaint from a transgender man was denied a seasonal camp counselor job he had previously held when his employer found out he was born female. The camp decided that Jeremiah Nazarkewycz couldn't work in the boys' cabins, as he had previously done, because he was born female. But neither could he work in the girls' cabins, because he lived and identified as a man.

Curiously, Mr. Nazarkewycz says that he disclosed being transgender when he was first hired, but his employer apparently didn't know what that meant and just thought he was gay, or, well, something. (Wowza.) The boss freaked out, though, when he read in the local paper about Mr. Nazarkewycz's coming out to a group of high school students.

Although the camp admits that it engaged in intentional discrimination on a ground forbidden by Maine law, it invokes the Bona Fide Occupational Qualification (BFOQ) defense. A BFOQ is the unusual situation where a characteristic it is normally illegal to consider is shown to be actually necessary for a particular job. There is next to no case law considering the BFOQ defense in the transgender context. This employer is getting pretty slippery with it:

"[Our camps] do not allow men to live with and supervise girls as they dress, and undress, toilet and shower, the most intimate activities of daily living," [the camp director] said. "By the same token we do not allow women to live with and supervise boys in the same circumstances."

The camp seems to be contending both that Mr. Nazarkewycz is a woman, and at the same time that he's a man, and that he can't work for them for both reasons.

Or, to give them a little more credit, their position is that in the context of supervising girls, gender identity and expression are what counts, but in the context of supervising boys, genetic or genital sex is what counts. Presumably, the employer would flip the argument around in the case of a trans woman seeking the job. It's essentially arguing that the confluence of gender identity and expression and genetic and/or genital sex is the BFOQ, so that only non-transgender (or for the Classically inclined, cisgender) people can do the job.

The report generated for the Commission by its investigator takes the view that

the statute for BFOQ must be interpreted very narrowly with the onus on the employer to prove by a "preponderance of evidence" that the nature of the business operation requires the discriminatory practice and that there is a factual basis to believe that all or nearly all of the excluded persons would be unable to do the job.

This, I think, the employer simply cannot do. In an ordinary sex discrimination case, it might be relatively easy to prove that it is necessary to have female counselors in the girls' cabins and male counselors in the boys'. That is because you wouldn't need to break down the category of "sex" into analytically separate components, which is necessary in a case like this one, at least if the BFOQ is construed narrowly, as described above. (Which is, I believe, the correct approach.) A trans employee or applicant will have some, but not all of the characteristics normally associated with the sex that is required for the job. The employer's job, then, is to prove that it is specifically the sex characteristics Mr. Nazarkewycz lacks that are necessary to do the work.

Given the camp's defense here, they need to make that case with regard to gender identity and expression for one position and with regard to genetic and/or genital sex for another. The former case should be easy enough to make, but the latter case strikes me as flat-out impossible, at least for a job like this. As a practical matter, it is only the girls' counselor position, which Mr. Nazarkewycz as a trans man presumably does not want, that the camp can likely prove he isn't qualified for.

Fifth Circuit holds sex device law unconstitutional

In a 2-1 decision yesterday, a panel of the Fifth Circuit Court of Appeals held that Texas's criminal ban on the distribution of sexual devices violates the Fourteenth Amendment's guarantee of personal liberty and privacy. The law defined any device "designed or marketed as useful primarily for the stimulation of human genital organs" as "obscene," and made selling, advertising, giving or lending such devices a crime. Persons who owned six or more such items were presumed to be distributors.

As Howard Bashman notes, the Fifth Circuit's decision directly conflicts with a decision by the Eleventh Circuit a year ago that upheld a very similar Alabama law, which the Supreme Court declined to review. The two decisions, of course, turned on the courts' interpretations of Lawrence v. Texas, and there were two main points of disagreements.

First, the Fifth Circuit rejected the Eleventh Circuit's view that these laws are bans on "commercial sex" -- something the Lawrence majority specifically said its reasoning did not apply to. The Fifth Circuit looked to precedents involving pornography and contraception, where the Supreme Court has repeatedly held that bans on commercial transactions can unconstitutionally burden private, non-commercial use of those products, and that merchants of those products have standing to assert the rights of the consumers. Moreover, the Fifth Circuit noted that the Texas statute could apply to noncommercial exchanges, i.e. lending or gifting.

Second, the Fifth Circuit rejected the Eleventh Circuit's view that it had court's must apply either "strict scrutiny if Lawrence established [the sexual conduct at issue] as a fundamental right or rational basis review if Lawrence did not." The Eleventh Circuit held that no fundamental right was at issue and that the law passed rational-basis review. By contrast, the Fifth Circuit noted that the Lawrence decision did not focus on such a distinction, but instead on "the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on" private sexual conduct. Finding the "morality" interests asserted by the State indistinguishable from those assert in Lawrence -- and rejecting as not rationally related concerns about protecting children and unwilling adults from exposure to sexual devices -- the court held the law invalid.

The en banc Fifth Circuit could reverse this ruling on rehearing -- but if it does not, this circuit split would seem to be headed for the Supreme Court. To date, the Court has studiously avoided taking cases raising the scope of Lawrence. This should be exciting.

In the meantime, as one blogger has put it, it's "Dildos 1, Texas 0." To celebrate the decision, one retailer of "all the best in sexual technology" has announced a "Texas Independence Sale" (Need I say this link is NSFW?).

Is "safe sex" speech protected at "abstinence-only" schools?

Two Illinois high school students were recently suspended from school for wearing shirts reading "Safe Sex or No Sex," and decorated with condoms. They were dissatisfied with their school's "abstinence-only" approach to sex education. The girls are to be commended for speaking up. (I'm reminded, fondly, of my own first adolescent gropings toward political activism.)

One immediately wonders, of course, whether the girls have a viable First Amendment claim. The lesson of Morse v. Frederick, it seems, is that schools can punish student speech if it promotes activity the school is legitimately trying to discourage. The school would argue that the t-shirts were promoting teen sex, contrary to the school's abstinence curriculum, and that this is analogous to a message promoting drug use. The decision in Frederick was narrowly framed, however, and the Court disclaimed any application to "political speech."

Is "Safe Sex or No Sex" political speech? It seems to me that there are two messages here: (1) advocating that those who choose to have sex use protection, and (2) protesting the school's curriculum. The latter is clearly political speech. The former is arguably political as well, since it a message of significant social important, and "political speech" has always been broadly construed. It seems to me disingenuous to say that the shirts promoted teens having sex per se, but of course whether promoting safe sex is promoting sex is, in a way, the crux of the debate over traditional vs. abstinence-only sex ed. Moreover, unlike Frederick, there is no indication that criminal activity is being advocated, since most teen sex is perfectly legal (although, most would say, contrary to public policy).

While this story may never become a lawsuit, many teens across the nation have similar sentiments, and this particular controversy is likely to be replicated, and sooner or later, litigated.

March 4 oral argument in California Marriage Cases

The Supreme Court of California has scheduled oral argument in In Re Marriage Cases for March 4. By the court's rules, it will render a decision as to the constitutionality of the state's ban on marriage for same-sex couples within 90 days. By my count, that means a decisions by, at the latest, June 2. It just so happens that the final presidential primaries are on June 3 (South Dakota for both parties and the New Mexico and Nebraska Republican primaries, for those taking notes). Either by accident or by design, the court's decision in this closely-watched case may just miss having an impact on the presidential nominating fights.

UPDATE: At Feminist Law Profs Blog, Prof. Anthony Infanti discusses the supplemental briefs sought by the supreme court, and what they might portend.

NY court recognizes lesbian couple's out-of-state marriage

Last Friday, an appellate court in New York State held that valid same-sex marriages from other jurisdictions must be recognized just as opposite-sex marriages are. The case was brought by a woman whose employer refused to recognize her Canadian marriage for purposes of the employee health plan. The employer argued that, since the New York Court of Appeals held in 2006 that New York law does not provide for same-sex couples to marry, the couple's union was not valid under New York law. The couirt concluded that, while New York did not provde for such marriages, neither did it have such a declared public policy against recognizing them. The court also rejected the argument that same-sex marriages, like incestuous or polygamous unions, are so abhorrent to "the public sense of morality" (as the old cases put it) that they shouldn't be recognized. Such a feeling may prevail in other parts, but the court rightly concluded that public abhorrence of same-sex marriage in New York is not so clear. I'm of course biased, but I'd expect an affirmance bythe Court of Appeals. (More discussion of the case at Prof. Arthur Leonard's blog.)

Now, this case involved a Canadian marriage - not one celebrated Massachusetts. Last year in the Cote-Whitacre case, the Massachusetts Supreme Court declared that a 1913 statute barred out-of-state same-sex couples from marrying if their marriage would be prohibited in their home state. On remand, the superior court interpreted the NY Court of Appeals decision as a declaration that such marriages are prohibited in New York, and therefore New York couples can't wed in Massachusetts. This holding seems to be in tension with last Friday's ruling. I'm not choice of law guru, but I'd think that if New York says it would recognize the marriages, there's no reason for the "reverse evasion" statute to bar them. I wonder if this question will return to the Massachusetts courts in the near future.

And of course, whether this will have any impact on the debate over the Spitzer-backed marriage equality bill also remains to be seen.

1st Cir. upholds gay-positive curriculum

Nearly a year ago, I blogged about the dismissal by the District of Massachusetts of a constitutional challenge to Lexington, MA's gay-positive elementary school curriculum. The plaintiffs -- two sets of parents -- argued that the exposure of their kids in kindergarten and first grade to books that positively portrayed same-sex relationships and marriages violated their rights of Free Exercise and their fundamental privacy and parental rights. (Although the Massachusetts constitution provides stronger Free Exercise protections than the U.S. Constitution, the parents asserted only federal claims.) The First Circuit has now affirmed that dismissal.

As most people know, parents are normally allowed to "opt out" for their kids when it comes to sex ed in school -- and this is true in Massachusetts as well. But as the district "has declined to apply this statutory exemption to these plaintiffs on the basis that the materials do not primarily involve human sexual education or human sexuality issues." That is, it's not "sex ed" anytime same-sex relationships or marriages are mentioned in the classroom, just as it's not "sex ed" anytime mixed-sex relationships or marriages are mentioned. The plaintiffs, of course, think otherwise.

Those interested in Free Exercise doctrine will note with interest that the First Circuit declined to "enter the fray" over the meaning of the Supreme Court's reference to "hybrid" Free Exercise claims in Employment Division v. Smith. Indeed, the court said it did not need to determine the level of constitutional scrutiny at all because teaching about gay couples simply was not a burden on the parents' or kids' religious exercise. Having chosen to live in a state that recognizes gay couples and send their children to public school, they must abide the curriculum, which does not require children to affirm any belief about gay couples or prevent parents teaching their children about their religious beliefs. The court treated the fundamental rights claims similarly, relying on copious precedent that while parents have a right to direct their childrens' upbringing, that right does not give them any control over the specifics of the curriculum. The court noted that the parents were free to engage "the normal political processes" to change the curriculum.

This doesn't mean litigation over queer-positive curricula is over. In 2005, a judge of Maryland's federal district court -- which is in the Fourth Circuit, not the First -- temporarily enjoined Montgomery County's curriculum for a likely Establishment Clause violation, because it "present[ed] only one view on the subject — that homosexuality is a natural and morally correct lifestyle." The district (where I happen to live) has approved a revised curriculum, which is bound to be litigated afresh. The district court's conclusion seems quite questionable, suggesting as it does that the Establishment Clause is violated anytime a curriculum appears to favor a point of view on any subject on which any religious group has a strong opinion. That could be quite problematic for both the physical and social science curricula. Still, I'd guess that by softening its message a bit, and giving more neutral acknowledgment (however brief) to other points of view, the new curriculum will pass muster. I guess we'll see.