Trans student's challenge to prom ejection goes forward

A federal judge in Indiana refused to dismiss a transgender teen's lawsuit claiming he was wrong ejected from his high school prom for wearing a dress. K.K. Logan (who apparently goes by male pronouns) wore typically feminine clothing throughout his senior year, without incident. Yet when prom came in the spring of '06, the principal barred the door and refused to let Logan enter in a dress. With the help of Lambda Legal, Logan asserted violations of his free speech and equal protection rights, and of the Title IX statute (which bars sex discrimination in education).

Leonard Link summarizes the decision:

The school district’s motion to dismiss raised a variety of arguments that have routinely been rejected by other courts in litigation challenging school policies on constitutional grounds, challenging the jurisdiction of the court and asserting the immunity of school officials. Judge Van Bokkelen succintly disposed of all of these arguments, pointing out that reaching any conclusion on the ultimate validity of Logan’s claims would be premature before the issues could be further developed through pre-trial discovery. The court’s ruling means that Kevin Logan and Lambda Legal will get their day in court unless the school board comes to its senses, realizes that school boards usually lose these kinds of cases, and offers a reasonable settlement. The board seems to be placing most of its reliance on a recent 7^th Circuit decision rebuffing a school’s disciplinary action barring anti-gay t-shirts, in which the court expressed unhappiness about federal judges intervening in such disputes between school officials and students, but that ruling did not deter Judge Van Bokkelen.

I blogged about that 7th Circuit decision back in April. It does little to help the school beyond generally saying that federal court intervention is undesirable. The case was actually decided on the grounds that allowing the shirt in question would be disruptive to learning to harmful to some gay students - certainly not rationales that apply here.

Prof. Leonard is right that schools frequently lose free speech suits, but there has been precious little litigation about gender expression through clothing as a form of protected speech. The only prior reported case I'm aware of is Doe v. Yunits, which correctly held that a student's gender expression through clothing is protected speech, just as much as a slogan on a t-shirt:

Plaintiff in this case is likely to establish that, by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with that gender. In addition, plaintiff's ability to express herself and her gender identity through dress is important to her health and well-being, as attested to by her treating therapist. Therefore, plaintiff's expression is not merely a personal preference but a necessary symbol of her very identity....

Although there is little precedent on point, this should be a no-brainer. K.K. Logan has graduated from high school, but a decision or settlement in Logan's favor will help ensure that trans students don't face similar discrimination in the future.

Pregnancy, fisting, and labia clamps: another look at the feds' idea of obscenity

Now comes before this blog another federal obscenity prosecution. This one targets Florida-based producer Barry Goldman, who has now been saved from total obscurity by the Justice Department's dubious attentions.

Given the inherent vagueness of the law of obscenity, the only way to really tell what's "obscene" is to look at patterns in prosecutions, convictions, and appeal outcomes. When adult industry lion John Stagliano was indicted earlier this year, I had a look at the trailers for the indicted videos and surmised that, out of the massive catalogue of Evil Angel Productions, the prosecutor cherry-picked the films in the indictment because they prominently featured enemas, female ejaculation, and BDSM. In this more typical case, involving obscure, low-quality productions, I didn't relish the prospect of doing my own research. Fortunately, Blowfish blogger Thomas Roche has watched this bad porn so I don't have to. (Much thanks to Mr. Roche, since he describes it as "low-quality SM porn by what appears to be an independent, amateur producer with vaguely misogynistic tendencies.")

So what does Justice think stands out about these videos other than bad taste? Based on Roche's description, the feds' interest was probably piqued by: knife play (no cutting), use of clamps on the nipples and labia, (apparent) vaginal fisting, and the use of a pregnant star. "Pregnant and Willing" sounds like the tamest of the bunch, and it will be remarkable if the prosecutor chooses to argue that the presence of a pregnancy should contribute to a finding of obscenity. The one thing that did jump out at me from Roche's description was the use of a face-down hogtie on the pregnant actress; as Roche puts it, "doesn’t seem even remotely safe, no matter how barely-pregnant she is." Unsafe working conditions are a big concern, but they should have no more bearing on a finding of obscenity than the safety of lighting rigs or adherence to industry STD testing protocols.

It also appears likely - again, remarkably - that the prosecutor will focus on the depiction (or suggestion) of fisting. As in the Evil Angel case, one suspects that the prosecutor will try to mischaracterize what is going on. Fisting will likely be presented to the jury as an "extreme," sadistic, painful, and perhaps dangerous act - when in fact it is simply a technically advanced (and admittedly visually dramatic), but perfectly safe and not necessarily painful, sexual technique. I'm basing this guess in part on the fact that fisting is a favorite topic of social conservatives' attacks on sexuality and HIV education funding.

Finally, this case is a stark example of prosecutorial forum-shopping. In the age of the Internet, you can bring an obscenity prosecution anywhere, and thanks to the Miller test you can rely on local "community values" to set the bar for conviction. So, the Evil Angel case involved material produced in California, but the indictment was brought in Florida. Here, the material was produced in Florida, but the indictment was in Montana!

Corporate Censorship of Audacia Ray

Author, director and sex blogger Audacia Ray is the latest prominent netizen to run head-on into increasing private regulation of online sexual speech. From Chris at Sex in the Public Square:

• First of all, Dacia tried last month to open an account at Citibank for her business, Waking Vixen Productions. After filling out the preliminary paperwork, she received a voicemail delicately informing her that her line of business made them unable to take her account.
• Then, early this month, she got a similar notice from iTunes, notifying her that her podcast, Live Girl Review, could no longer be included in their directory. ITunes was less direct than Citibank, saying only that podcasts could be excluded "for a variety of reasons." On checking out their podcast spec sheet, she found "strong prevalence of sexual content" included among the possible reasons that Apple can kick you to the curb.
• And just last week, Google yanked her Google Checkout account, barely twenty-four hours after she'd put her new short film The Love Machine up for sale. According to the e-mail Google sent Dacia, "the products or services [she's] selling on [her] website are considered ‘Restricted’ per our policy- Adult goods and services."

Policies like these appear far broader than necessary to achieve legitimate goals such as shielding minors from pornography. As Chris points out, they serve instead to push sexual speech into a suffocating online ghetto. And as long as sexual speech is ghettoized, it will be dominated by crass commercial porn, and robust, diverse, and challenging discussions of sexuality will never find a broad public audience.

More on the stripping-for-legal-services case

The reports of the disciplinary hearing board and review board confirm that the lawyer in question was sanctioned primarily on the basis of extensive findings regarding his abuse of the lawyer-client relationship and criminal acts of sexual assault, as well as lying to the police.

While I wrote before the Illinois does not have a codified per se rule against lawyer-client sexual conduct, it turns out that like some other states, Illinois nevertheless has a judicially-crafted per se rule. The board had no need to decide whether receive exotic dances alone constituted a sexual relationship, because the lawyer engaged in much more direct, and unwanted, sexual contact. Accordingly, he was sanctioned more severely than lawyers who had sex with consenting clients.

In other words, this was really a case about straightforward abuse and misconduct, not about the use of exotic dance as in-kind payment. However, the hearing board did say this:

[Lawyer] admitted [client] performed nude dances for him in his office in exchange for a reduction of his bill. This admission alone is sufficient to support a finding of misconduct. However, because of our other findings, we need not, and do not, base our recommendation on this finding alone.

The review board agreed that this conduct "is reprehensible in and of itself." But because this case involved additional and much more serious conduct, neither body made clear its reasoning on this point.

The reports I've linked to are lengthy, and boil down to "don't assault your clients (and by the way also don't play games with the definition of 'sexual relationship' either)." But I can't help pointing out this icky-squicky moment, from a tape of a conversation between the parties:

[Client]: It's been more than that. I know it has. But every time I'm here, there's been touching and groping and stuff like that, every time.

[Lawyer]: Not every time you've been in my office, no....

[Client]: If it was dancing, I have no problem with dancing. I love dancing and I love - that's my job, but you took it a lot further than that, I mean -

[Lawyer]: Well, only because you let me.

Gah. Which is why even exotic dancers who want to trade their services for legal help will be glad this guy isn't practicing law for awhile.

Schroer v. Library of Congress: What Next?

Judge Robertson's judgment for Diane Schroer may be pathbreaking, but it's only one district court decision. What happens next? Here are some possibilities:

The government could decide not to appeal. Prof. Leonard observes that an appeal can't be taken here until a final order, which means the remedy phase must first be completed. That could take months, and as Prof. Hunter observes, by then there will be a new Attorney General, who may well decide not to appeal. They make a policy decision not to challenge the ruling; on the other hand, the government usually defends suits against federal agencies vigorously.

The D.C. Circuit is likely to reverse. The D.C. Circuit is one of the most conservative in the country; nine of its thirteen members are Republican appointees, and some are noted conservative ideologues. I would fully expect the D.C. Circuit to adhere to the "traditional concept of sex" approach of Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984).

Other courts could choose to distinguish Schroer. Like Barnes in the Sixth Circuit, this case fits well into the sex stereotyping theory because it involves an employer's reaction to someone who is in the process of gender transition. In both cases, the employer first encounters the plaintiff as male and is prejudiced against her when confronted with her transition and her feminine gender presentation. A court might find that this theory doesn't apply when an employer has only known the plaintiff post-transition, and discrimination occurs when the employer later learns of the transition. In such a case, the court might see it more as discrimination because of the status of being transsexual rather than because of not conforming to expectations for the gender the employer initially saw them as. Then, the court would have to agree with Judge Robertson's theory that discrimination because of transsexuality as such is also sex discrimination, because transsexuality is an aspect of sex - and no other court has yet accepted this theory, even though it is clearly correct.

The Supreme Court could decline to hear the case. As Prof. Leonard observes, the Supreme Court in 2005 declined to hear a similar case out of the Sixth Circuit. However, this does not necessarily mean they will do the same thing again. The Justices may have thought that since the Sixth Circuit's decision represented a departure from older decisions by other circuits, and was based on Supreme Court precedent handed down since those earlier decisions, that the issue might resolve itself without the court's intervention. If the D.C. Circuit affirmed Judge Robertson's ruling, this confirm that the courts of appeals might just sort this out on their own. But if the D.C. Circuit were to reverse in this case, the situation would be different: a clear circuit split on the the application of the most recent applicable precedent.

And if the Supreme Court does hear the case? Gods only know. The Court has only ever heard one case involving a transgender plaintiff, and that 14-year-old decision tells us little about the Justices' predispositions in this area. (Farmer v. Brennan case held that it is unconstitutional for prison authorities to stand idle while prisoners suffer physical and sexual abuse, but set a high bar for such claims.) On the one hand, this is easily the most conservative high court in generations, but its record on employment discrimination is far from all bad; broad pro-employee rulings by the conservative Rehnquist Court made suits like this possible. Judge Robertson's opinion seems tailor-made to appeal to the Court's conservatives - particularly Justice Scalia - with its emphasis on the plain statutory text; it emphasizes that to rule the other way would require placing inferences about legislative intent about the logical meaning of the statute's words. I think this case could go either way before the high court, but it would be far preferable for Congress to clarify the matter first.

More on judgment in Schroer v. LoC

Judge Robertson's fabulous ruling has already been thoroughly blogged at ACLU's Get Busy Get Equal Blog, RH Reality Check, Leonard Link, Feministing and hunter of justice.

I agree with Prof. Hunter that this is "an enormous breakthrough in the law." The decision is not unprecedented legally - several other courts have held that anti-trans discrimination is covered by Title VII - but it is perhaps the most thorough and well-reasoned such decision, and the facts are simple and compelling.

Prof. Leonard notes what is perhaps the most remarkable aspect of the court's reasoning - its analogy to religious discrimination. From the opinion:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that “transsexuality” is unprotected by Title VII. In other words, courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.

This is precisely right, but Robertson is the first judge to latch on to this logic, largely for the reason he states. This analogy makes it much harder to refute Robertson's holding.

Another remarkable thing about the decision is it shows something we rarely get to see: a judge openly changing his mind. Judge Robertson's 2006 ruling refusing to throw out the case expressed reservations about applying the "sex stereotyping" theory to anti-transgender discrimination. Instead, he favored looking at this as a more traditional sex discrimination claim, to the extent Schroer could prove that transsexuality is an aspect of "sex." But, says Robertson now: "That was before the development of the factual record that is now before me." He continues:

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.

Either way it was sex stereotyping, and it was also discrimination directly premised on Schroer's sex. All roads here really do lead to Rome.

On another level, the Schroer judgment reads like a manual for employers on What Not to Do When Dealing with Transgender Workers. Robertson catalogues the baseless assumptions made by Library of Congress staff, and points out how easily they could have been dispelled had any bothered to actually think things through. Robertson also rejects on its face an excuse that wouldn't pass the red-face test in a race or religion case: we can't hire the plaintiff because of other people's discriminatory attitudes.

I'll have more to say soon on the future of this case.

Victory in Schroer v. Library of Congress!

Following a four-day trial last month, D.C. federal district judge James Roberston today released his decision in favor of Diane Schroer, concluding:

In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker’s sex stereotypes about how men and women should act and appear, and in response to Schroer’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.

I'll likely have more to say on this come next week. For now, here's the opinion (PDF), and here's a nice summary at hunter of justice. Once again, h/t to How Appealing.

Exotic dance and the lawyer-client relationship

A Chicago-area lawyer has been suspended following complaints by a client, who happens to be an exotic dancer. The Chicago Tribune provides this lead for the story:

A DeKalb lawyer was suspended for 15 months Thursday for arranging to have a female client perform nude dances for him in exchange for credit on her legal fees, a state commission said.

Puzzlingly, only in the latter half of the article is it mentioned that this same client also made allegations of sexual assault against the lawyer. (A grand jury failed to indict him.) It is not at all clear from the article to what extent the disciplinary action was taken on the basis of the assault allegations vs. the exchange of dances for legal services. Sexually assaulting or even sexually harassing a client would certainly be sufficient grounds for discipline, in and of itself.

Whether the exchange of exotic dance - including, here, nudity and at times the privacy of the attorney's office - for legal services is itself grounds for discipline is an interesting question. Nothing in the Illinois Rules of Professional Conduct prohibits in-kind payment, of which this is one kind; clients pay lawyers with services like plumbing. Interestingly, unlike the ABA's Model Rules, Illinois does not have a rule prohibiting sexual relations with current clients. If Illinois had such a rule, it would raise the question whether private nude dances constitute "sexual relations."

Since Illinois doesn't have a sexual-relations rule, this conduct would have to fall under either Rule 1.7(b) (personal conflict of interest interfering with competent representation) or Rule 8.4(a)(5) (conduct prejudicial to the administration of justice). I really don't think receiving exotic dances is prejudicial to the administration of justice, and if it is the legal profession has some serious culling to do. However, it is not hard to imagine this situation presenting a conflict of interest. Although on one level the transaction between exotic dancer and patron is one of fee-for-service, it is also a kind of service that is not unlikely to generate strong feelings (of lust, romantic interest, etc.) on the part of the patron- particularly the regular patron. The professional boundaries typically maintained by dancers would also be eroded by giving dances in a private setting. It is not hard to imagine the lawyer developing an attachment of one kind or another to the client that could interfere with competent representation.

This is not unique to exotic dancing, or other kinds of sexually-charged entertainment. There are other kinds of services that would probably be inappropriate between lawyer and client for the same reason - say, for instance, psychotherapy. (Many sex workers will tell you that their job can be a bit like being a shrink!) At least, they would be inappropriate as an ongoing method of payment. The story here indicates that the dance transaction began inadvertently when lawyer and client ran into one another at the client's workplace, after speaking about legal representation on the phone. I don't think this by itself would create a conflict, even if they realized it after the lawyer received a dance or two. Similarly, a lawyer could probably represent a therapist whom she saw for a few brief sessions in the recent past.

So a situation like this could present an interesting question and possibly a serious ethics problem, even in the absence of more clear-cut misconduct. Unfortunately, the Tribune decided to go for the titillation factor rather than provide the whole story.

H/t to How Appealing.