New York Federal Judge Decides Transgender Identity Gets Heightened Protection

The context is an arrest during the 2011 Occupy Wall Street protests on Brooklyn Bridge and an allegation that there was differential treatment of a transgendered protester And while the complaint raised several constitutional claims, United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion in Adkins v. City of New York.

Interestingly, the judge based his opinion on the Second Circuit’s 2012 decision in United States v. Windsor which of course was affirmed on other grounds by the United States Supreme Court. Judge Rakoff wrote

[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.

Judge Rakoff then applied each of the factors (derived from the famous Carolene Products’ footnote four) to hold that transgender people are a quasi-suspect class. Indeed, Judge Rakoff decided that in each of the factors, transgender people more easily meet the factor than “gay people” did at the time of the Second Circuit’s decision in Windsor. For example, on the political weakness factor, Judge Rakoff reasoned:

Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.

In applying intermediate scrutiny, the judge rejected the government’s argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss). Judge Rakoff continued:

Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.

The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit’s decision in Windsor occurred after the October 2011 Occupy Wall Street protest. However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.

Thus, the case moves to settlement as so many of the Occupy arrest cases have done – – – unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment’s Equal Protection Clause.

[adapted from Constitutional Law Professors Blog]

It’s Bill of Rights Day: Why Isn’t it a paid holiday? And what are we celebrating?

“Forgive yourself if you haven’t made any special plans for Bill of Rights Day again this year. It’s not a federal holiday after all. Indeed, Congress has made sure that any recognition of Bill of Rights Day would not create a bona fide holiday (really, who needs another day off?) and would not require any funds be spent commemorating the first ten amendments to the United States Constitution.”

More from my column on Bill of Rights Day (who started it and why?) – – – and the Bill of Rights (was it really about rights? was the first amendment first because it was most important? ) – – – is here.

And then there’s that nasty omission of equality, although President Obama incorporated it in his proclamation this year.

Sexual Conversion Therapy at the UN and in the US

Hieronymus Bosch

Sexual conversion therapy, also known as reparative therapy or sexual orientation change efforts (“SOCE”) seek to “convert” a patient’s sexual orientation from homosexual to heterosexual (never the reverse). The goal of this “therapy” is to “cure” homosexuality.

The National Center for Lesbian Rights (NCLR) has recently been spearheading efforts to have the United Nations Committee Against Torture consider whether sexual conversion therapy in the US constitutes torture as defined by the Convention Against Torture (CAT).

Meanwhile, in the United States, two states have prohibited the practices – – – at least when provided by licensed therapists on patients who are minors. The statutes of both California and New Jersey were challenged as infringing on therapists’ First Amendment rights of free speech. Federal appellate courts upheld both statutes, but on very different theories. Here’s my discussion of the cases for the American Psychological Society.

Same-Sex Marriage May Be On Its Way to the Supreme Court

The Sixth Circuit’s opinion today in DeBoer v. Snyder upheld the constitutionality of several same-sex marriage bans, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee. This bucks the trend in which circuit courts have declared such bans unconstitutional: the Seventh Circuit in Bogan v. Baskin and Walker v. Wolf, decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin; the Tenth Circuit in Herbert v. Kitchen, an opinion issued in June regarding Utah’s prohibition and Smith v. Bishop, extending Herbert’s reasoning to the ban in Oklahoma; and the Fourth Circuit in Bostic v. Rainey regarding Virginia’s ban.

And – – – more importantly – – – it creates a “circuit split” making the possibility that the United States Supreme Court will accept discretionary review much more likely.

The Sixth Circuit’s opinion is a divided one by a three-judge panel. The majority’s basic theme is judicial restraint: judges, especially federal judges, should not be deciding the issue. The dissenting judge begins her opinion with a scathing assessment of the scholarly quality of the majority’s opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.

Legal analysis and a link to the full text of the opinion is available in my post on the Constitutional Law Professors blog here

Scottish Independence, Empire, and National Dress

While the Act of Settlement of 1701 is touted as a “resolution” of the relationship between Scotland and England that is again at issue with the Scottish independence vote, legal regulation of clothes tells a different story.

The relationship between England and Scotland was long mediated through laws passed by the English to regulate appearance. Unlike England’s regulations of the Irish – – – which focused on mustaches, hairstyles, and mantles – – – the target of the Scottish attire regulations was tartan and plaid. Even after the 1688 deposing of the controversial and Catholic King James (known as James II as King of England and Ireland, and as James VII as King of Scotland), there were continuing battles and royal contestations.

In 1746, after another Jacobite “uprising” in the north, Parliament under King George II passed an “An Act for the more effectually disarming the Highlands in Scotland; and for the more effectually securing the Peace of the said Highlands ; and for restraining the Use of the Highland Dress; and for further indemnifying such Persons as have acted in Defence of His Majesty’s Person and Government, during the unnatural Rebellion.”[i] While much of the Act concerns firearms, including permissible search and seizure processes, section 17 prohibits Scottish dress:

no man or boy, within that part of Great Briton called Scotland, other than shall be employed as officers and soldiers in his Majesty’s forces, shall on any pretence whatsoever, wear or put on the clothes commonly called Highland Clothes (that is to say) the plaid, philibeg, or little kilt, trowse, shoulder belts, or any part whatsoever of what peculiarly belongs to the highland garb; and that no tartan, or partly-coloured plaid or stuff shall be used for great coats, or for upper coats.

By its terms, the provision only applies to males, but it is otherwise quite different from the “acts of apparel” of two centuries before. The punishment to be imposed reflects the severity of the infraction as a crime of “unnatural Rebellion” as well as the status of “Great Briton” as an empire: a first offense is imprisonment without bail for six months; a second offense would render a person “liable to be transported to any of his Majesty’s plantations beyond the seas, there to remain for a space of seven years.”

And so the colonies were “settled” by a plaid-wearing people.

Excerpted from Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our hairstyles to Our Shoes

Quotes from Statute: Act of Proscription, 19 Geo. II, ch. 39 (1746) in The statutes at large, from Magna Charta, to the end of the last Parliament, 1761 in eight volumes, (Owen Ruffhead,ed.) (London : printed by Mark Baskett, and by the assigns of Robert Baskett; and by Henry Woodfall and William Strahan, 1768-70), Vol. 6: 704-710.

[image via]

Lying in Political Campaigns is Constitutional

If you had any doubts that lies, falsehoods, or half-truths were fine during political campaigns, they should probably be laid to rest.

In a 25 page opinion replete with bolded underlined language, Judge Timothy Black held Ohio’s statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission. The United States Supreme Court last term heard the case as Susan B. Anthony List v. Driehaus on the issue of whether the matter was “ripe” for review, since no one was actually prosecuted under the law, and unanimously held it could be decided, sending it back to the lower courts. The Court’s opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a “ministry of truth,” a characterization later echoed by Justice Scalia.

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: “we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth.” (bold underlining in original). However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

These twinned rationales – – – the “Ministry of Truth” and the “flood of naked truth” – – – undergird the Judge’s doctrinal analysis, more of which is discussed here. Although the judge gives a nod to his doubts that the truth will out given unlimited campaign spending constitutionalized by the Court’s interpretation of the First Amendment in Citizens United, that’s not sufficient to undermine the principles.

“A Naked Truth, or Nipping Frost” by Charles Williams circa 1803 via

Zephyr Teachout’s Book: Corruption

New Yorkers know that Zephyr Teachout is challenging incumbent Andrew Cuomo for Governor in the primary next week.

That challenge is linked to her book – – – entitled simply Corruption – – – just published by Harvard University Press.

Here’s a bit from the publisher’s description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Interestingly the New York Times did not endorse Teachout because her focus on corruption made her too narrow, but it did not endorse Cuomo, seemingly because his focus on corruption was not sufficient. Teachout’s running mate, also a law professor, did garner the NYT endorsement. (more, with links, here).

Practice of Oral Suction Circumcision (MBP) and Religious Free Exercise

The United States Court of Appeals for the Second Circuit has ruled on a NYC Regulation requiring disclosure to parents about the possible adverse health consequences of “oral suction” circumcision.

Reversing the district judge’s decision rendered more than 18 months ago, the Second Circuit’s opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment’s Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for “oral suction” circumcision. The unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law.

The opening of the court’s opinion gives a good preview of the court’s perspective:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is “simpler to address” than was true in Lukumi “in light of the Department’s own admission that metzitzah b’peh ‘prompted’ § 181.21 and that metzitzah b’peh is ‘the only presently known conduct’ covered by the Regulation.”

The court notes that “the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims.”

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge’s original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

Trans* Marriage: Still An Issue

How do courts applying state law that requires “one man and one woman” for the validity of marriage look at marriages in which one of the parties has transitioned genders?

That’s an issue one of our CUNY Law alums, Alana Chazan (pictured), just litigated in California. While California, of course, now recognizes same-sex marriages so that gender should not have been an issue at all, the marriage at issue occurred in Louisiana, a state that does not recognize same-sex marriages.

Superior Court Judge Gould-Saltman, in the Statement of Decision in Miller v. Angel considered the full faith and credit clause implications not only of the Louisiana marriage, but also of the California judgment that the petitioner was male, entered in 1998, years before the 2003 marriage. In essence, the judge rules, that California judgment was good enough for a driver’s license and it is good enough for a marriage license, arguments that there needed to be a birth certificate notwithstanding. The judge added that the putative spouse theory had relevance because the parties intended to be married to each other.

Why all the fuss about the validity of the marriage? There’s an underlying property dispute.

I considered similar issues almost a decade ago in an essay Reinscribing Normality? The Law and Politics of Transgender Marriage published in the anthology Transgender Rights edited by Brooklyn College Professor Paisley Currah, Shannon Minter, and Richard Juang. (A version also appeared in Hypatia as A Mere Switch or a Fundamental Change? Theorizing Transgender Marriage and is available here). The article analyzes the cases, their rhetoric, and also the lawyering choices that can pit individual interests against theoretical positions. And though I don’t generally list my own work on a class syllabus, this is one that I’ve made optional in Sexuality and the Law for many years.

And how nice to get a note with the opinion from one of the former students in the class who used the article to win a case.

Though how odd that such cases are still being litigated.

Should Rap Lyrics Be Used Against Author in Criminal Trial? New Jersey Supreme Court Says No

The question of whether one’s artistic expressions can be be used against one in a criminal trial occurs with some frequency. This is not about being criminally prosecuted for the expression itself, as in an obscenity case. Instead, this is about using artistic expression as evidence to prove that a defendant’s intent or motive to commit the crime.

In such scenarios, Bob Marley’s well known song “I shot the sheriff” could be used at trial if he had been prosecuted for murder of a law enforcement officer. And Johnny Cash’s famous lyric “I shot a man in Reno just to watch him die,” could be introduced at trial if he had been prosecuted for first degree murder, presumably even if not in Reno, to show his bad intent.

In State v. Skinner, the New Jersey Supreme Court reversed the introduction of rap lyrics authored by the defendant before the alleged crime. The court interpreted the commonplace evidentiary rule that requires a weighing of the “prejudicial impact” of evidence against its “probative value.” The lyrics were deemed prejudicial because they were violent and obscene. But the more important query was whether they were at all “probative”? Which brought the court to Bob Marley, as well as to Edgar Allen Poe:

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

The opinion is decidedly grounded in the rules of evidence that govern criminal (and civil) trials rather than the First Amendment, but First Amendment protections for free expression cast a long shadow here. The New Jersey Supreme Court’s unanimous opinion contains a lengthy passage describing the First Amendment discussion in the ALCU’s amicus brief, although the court never explicitly returns to the First Amendment in its own analysis. The “nexus” language is key. To the extent that expression details the accused crime, it is more likely to be admissible. But the New Jersey Supreme Court makes clear that a song about how one shot the sheriff (and not the deputy) isn’t likely to be admitted in a criminal trial to prove your intent to commit murder.

[image via; more discussion on the Constitutional Law Professors Blog here].

Robson at CUNY Law

City University of New York Academic Commons