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U.S. Federal Courts

Federal court: No misgendering transgender students on religious grounds

7th Circuit judge issued ruling in Ind. case

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The 7th U.S. Circuit Court of Appeals ruled Friday that a public school teacher does not have the right to misgender a transgender student simply because they’re trans. The court found a religious accommodation could not justify the “harm to students and disruption to the learning environment.”

The 3-judge circuit court panel upheld a Jan. 8, 2020, ruling by U.S. District Court Judge Jane Magnus-Stinson from the U.S. District Court for the Southern District of Indiana.

The case on behalf of John Kluge, who worked at Brownsburg High School in Brownsburg, Ind., as a music and orchestra teacher from 2014 until May 2018, was brought by the anti-LGBTQ legal group Alliance Defending Freedom, which self labels as a conservative Christian legal advocacy group, but the Southern Poverty Law Center first listed as an anti-LGBTQ hate group in 2016.

WISH in Indianapolis had reported that in court documents Brownsburg faculty during meetings in early 2017 began talking about trans students and “how teachers can encourage and support them.” After that, faculty and staff approached the high school’s principal for direction on how to address trans students.

In May 2017, Kluge and three other teachers presented the principal with a signed letter expressing religious objections to “transgenderism,” asking that faculty and staff not be required to refer to trans students by their preferred pronouns. In the letter, they also said they did not want trans students to be allowed to use the restrooms or locker rooms of their choice.

Later in that May, the Brownsburg Community School Corporation district adopted a policy that required all staff to refer to students by their chosen name listed in the school records. According to court documents, “students could change their first names in PowerSchool if they presented a letter from a parent and a letter from a healthcare professional regarding the need for a name change.”

The policy also allowed trans students to use restrooms of their choice and dress according to the gender with which they identified.

Kluge refused and was told by the high school’s principal that there were only three options: Follow the policy; resign; or be suspended, pending termination. He refused to follow the policy or resign, so he was suspended.

Kluge then compromised and presented district officials with two requested accommodations: First, that he be allowed to refer to all students by their last names only, “like a gym coach;” and second, that he not be responsible for handing out gender specific orchestra uniforms to students. He would treat the class like an “orchestra team” he proposed.

According to the court documents, He agreed that, if a student asked him why he was using last names only, he would not mention his religious objections to using trans students’ first names and would explain, “I’m using last names only because we’re a team, we’re an orchestra team, just like a sports coach says, hey, Smith, hey, Jones. We are one orchestra team working towards a common goal.”

School officials began to receive complaints from the Brownsburg High School Equality Alliance students and parents that Kluge was referring to them by their last names only, was a practice they found insulting and disrespectful.

In addition to the complaints of the school’s LGBTQ students, a student who was not in the Equality Alliance but was in Kluge’s orchestra class and who did not identify as LGBTQ, told school administrators that Kluge’s use of last names made him feel incredibly uncomfortable. The student described Kluge’s practice as very awkward because the student was fairly certain that all the students knew why Kluge had switched to using last names, and that it made the trans students in the orchestra class stand out. The student felt bad for the trans students, and shared with that other students felt this way as well.

The principal met with Kluge in December 2017 and told him using last names only was “creating tension in the students and faculty” and told him it might be good for him to resign at the end of the year.

On Jan. 22, 2018, administrators presented the faculty with a document titled “Transgender Questions.” The document provided policies and guidance for faculty in a question/answer format regarding issues relevant to trans students. Among the questions posed and answers given were the following:

Are we allowed to use the student’s last name only?

We have agreed to this for the 2017–2018 school year, but moving forward it is our expectation the student will be called by the first name listed in PowerSchool.

How do teachers break from their personal biases and beliefs so that we can best serve our students?

We know this is a difficult topic for some staff members, however, when you work in a public school, you sign up to follow the law and the policies/practices of that organization and that might mean following practices that are different than your beliefs

What feedback and information has been received from transgender students?

They appreciate teachers who are accepting and supporting of them. They feel dehumanized by teachers they perceive as not being accepting or who continue to use the wrong pronouns or names. Non-transgender students in classrooms with transgender students have stated
they feel uncomfortable in classrooms where teachers are not accepting. For example, teachers that call students by their last name, don’t use correct pronouns, don’t speak to the studentor acknowledge them, etc.

According to WISH, Kluge responded to the document by asking if he would still be allowed to call the students by their last names only.

In a February meeting, administrators told Kluge he would no longer be allowed to continue that practice, saying the “accommodation was not reasonable.” They went on to discuss whether Kluge would finish the school year or resign mid-year and offered to let him submit his resignation and not process it or tell anyone about it until the end of the school year. Kluge told the court the explanation of the resignation process led him to believe he could turn in a “conditional resignation” that he could later withdraw.

In March, Kluge was once again given the same options: follow the name policy and keep working for the district, resign or be terminated. He was told if he didn’t submit his resignation by May 1, the district would begin the termination process.

On April 30, Kluge emailed the human resources director with a formal resignation and asked that it not be shared with anyone until May 29. In the letter, he said he was resigning because of the district’s name policy and the loss of his accommodation.

By late May Kluge then attempted to withdraw his resignation and accused the district of discrimination based on his religious beliefs. At a June 11, 2018, school board meeting, he asked the board members to not to accept his resignation, and then there was a contentious public comments session as members of the community spoke both for and against his termination. The board approved his resignation.

Not long after he filed suit.

Magnus-Stinson in her ruling noted: Kluge v. Brownsburg Cmty. Sch. Corp., 432 F. Supp. 3d 823, 851 (S.D. Ind. 2020) (“The policy controlled the way in which Mr. Kluge addressed individual students during the course of his employment, but did not otherwise affect his ability to exercise his religion in the remainder of his life. Accordingly, to the extent that the Policy limited his religious exercise, the limitation was not so significant as to render the entire idea of free exercise of religion meaningless, because Mr. Kluge remained free to exercise his religious beliefs at other times and in other places.”)

Magnus-Stinson also concluded that a public school corporation “has an obligation to meet the needs of all of its students, not just a majority of students or the students that were unaware of or unbothered by Mr. Kluge’s practice of using last names only.”

Friday’s appellate court decision is likely to be appealed to the U.S. Supreme Court.

Seventh Circuit ruling upholding U.S. District Court Judge Jane Magnus-Stinson’s ruling:

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U.S. Federal Courts

Meeting the moment: Democracy Forward takes prominent role in fighting Trump regime

Group is involved in cases including some before the Supreme Court that concern LGBTQ rights

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Just weeks before the U.S. Supreme Court is expected to decide a handful of cases with potentially huge implications for LGBTQ rights in America, the Washington Blade spoke with the president of a group that is involved in several of those legal battles and others that have taken center stage in President Donald Trump’s second term.

Since 2021, Skye Perryman has served as president and CEO of Democracy Forward, a legal services and impact litigation group distinguished in part by its focus, “in our organizational hiring, and in our growth, and in our organizational culture,” on “having as many highly talented lawyers full-time, on our staff, as we possibly can.”

The moment requires it. Since the start of the new administration, demand for legal representation has skyrocketed as people and communities, from government workers to university administrators and LGBTQ populations, have been targeted.

Additionally, following his return to the White House Trump has launched an unprecedented assault against lawyers and law firms, which has discouraged attorneys from representing clients and causes that might put them at odds with the administration or with the president himself.

As queer Russian-American journalist and author M. Gessen said recently, “the judiciary is the hardest thing to restore once it has been destroyed. It’s a very, very complicated universe — of courts and lawyers and cultural norms and educational institutions and law firms as institutions that are distinct from individual lawyers — and he’s attacking every one of those elements.”

“We’ve grown substantially in order to be able to meet this moment, which is why we’re able to be in court,” Perryman told the Blade, “because we have lawyers on our staff,” about 50 full-time attorneys right now, which means “we’re not as dependent on pro bono legal services.”

Trump’s attacks on the rule of law have been complicated by the surrender of firms that have struck deals with the president to spare themselves from executive orders that present existential threats to their survival but which others have chosen to fight in court.

Perryman said that as a result of these settlements, “there are less legal services available at a time when the major tool that the American people have right now to defend their rights against their government is the ability to initiate litigation.”

In back-to-back rulings in late March followed by a decision early last month, Judges John Bates, Richard Leon, and Beryl Howell of the U.S. District Court for the District of Columbia struck down Trump’s executive orders against the firms Jenner & Block, WilmerHale, and Perkins Coie, ruling them unconstitutional. (Perryman is an alum of WilmerHale and of Covington & Burling, another top firm that is fighting an order targeting them.)

Nevertheless, “there has been an exponential increase in demand for our work as an organization, for our lawyers, because there has been a reduction in legal services provided by many firms in the private bar,” Perryman said.

She hedged that many firms have continued “doing pro-democracy work” since the start of Trump’s second term, but added there still “has been an overall significant gap in the legal services the private bar has been providing.”

Asked whether she has seen evidence that this has impacted litigation against Trump’s anti-trans executive orders and policies, Perryman declined to address specifics. “What we’ve seen more broadly is just firms not wanting to take on causes that would put them in the crosshairs of the administration,” she said, but noted that “of course, this is an administration that’s already shown that it’s very focused on rolling back the rights of the LGBTQ community.”

Pushing back against attacks on the rule of law

“There’s not a question in these courts’ minds about the constitutionality of what the administration is doing,” Perryman said. “You see very strong language that unequivocally makes it clear that a variety of our constitutional amendments and provisions are threatened and violated with respect to a president that is seeking to retaliate and to engage in these direct attacks on lawyers and law firms.”

Moreover, “These judges have all spent time in their opinions talking about the corrosive effects [of] law firms that have settled their matters, the fact that the administration appears to be have been able to resolve its concerns about a law firm merely if they’re willing to settle,” she said. “They really call that out as a pretext.”

Perryman added that the judges who have ruled in favor of plaintiffs challenging the Trump administration represent a variety of ideological backgrounds, or were nominated for their positions by presidents from both parties, which “really shows that these attacks and the response and our Constitution’s response to these attacks is something that transcends politics and transcends the general way that we look at politics in this country.”

“In the United States, the president cannot retaliate against people just because he doesn’t like who their clients were, and he can’t deprive people of legal representation,” Perryman said. “And I think that you see those themes come through very clearly in the opinions.”

Major victories and what’s on the docket now

“In many instances, we’ve co counseled and developed cases alongside Lambda and other groups specifically and exclusively focused on LGBTQ rights,” Perryman said, referring to Lambda Legal, an LGBTQ focused organization that does a lot of impact litigation.

“Democracy Forward’s expertise is very broad, and we do a lot of work with respect to the federal government and federal agencies and how those agencies work for people,” she added.

Perryman pointed to the successful legal challenge led by Democracy Forward against the Office of Management and Budget’s Jan. 28 memo ordering a nationwide hold on disbursements of federal grants and loans. The order came pursuant to Trump’s executive orders targeting DEI and the trans community, so LGBTQ nonprofits were disproportionately impacted among the groups receiving public funds.

The lawsuit filed on behalf of Democracy Forward’s plaintiffs including SAGE, which provides a variety of critical services for LGBTQ elders, resulted in a preliminary injunction issued by Judge Loren AliKhan of the U.S. District Court for the District of Columbia, which remains in place, protecting organizations that she noted would otherwise have faced “economically catastrophic—and in some circumstances, fatal” consequences.

“That litigation is helping the whole country, not just LGBTQ communities,” Perryman said, noting that in this case as in other cases, LGBTQ people and communities are often disproportionately impacted by litigation that, facially or at first blush, may not seem to directly concern their rights or welfare.

Perryman credited SAGE for suing the administration during its early days when the executive orders targeting lawyers and law firms were new and there was not much appetite for challenging the new Trump regime in court. “Everyone was very scared,” she said “and we’re just so proud of our clients.”

Another example, she noted, is Medina v. Planned Parenthood South Atlantic, which is pending a decision by the Supreme Court. The case is “sort of around an executive order that the governor of South Carolina put in place that removes facilities that provide abortion from the Medicaid provider list,” Perryman said.

She continued, “What that effectively does is it cuts off access, for patients that are using Medicaid, to critical services provided by Planned Parenthood clinics in the state, services that go far beyond just abortion care. Planned Parenthood, of course, provides so many sexual and reproductive health services, including to the LGBTQ community. And so I think that is a case that is also worth mentioning. We filed a brief there on behalf of current and former senior HHS administrators and others.”

Also before the Supreme Court as the June term nears its conclusion are cases like Kennedy v. Braidwood Management, Inc., which could imperil coverage under the Affordable Care Act for a broad swath of preventative health services and medications beyond PrEP, which is used to reduce the risk of transmitting HIV through sex.

Plaintiffs brought the case to challenge a requirement that insurers and group health plans cover the drug regimen, arguing that the mandate “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

The case has been broadened, however, such that cancer screenings, heart disease medications, medications for infants, and several other preventive care services are in jeopardy, LGBTQ and civil rights organizations have argued.

“In the Braidwood case, we filed a brief representing medical groups that outlines the real harms that could result if the court adopts what is, we believe, quite a baseless position,” Perryman said, “and how those harms could extend to all communities, frankly.”

There are others, Perryman noted. “The administration weaponizing the government against the rights of the American people and against LGBTQ people,” which has led Democracy Forward to challenge the firing of federal employees responsible for DEI, and the termination of Jocelyn Samuels from the U.S. Equal Employment Opportunity Commission, where she served as a commissioner and as such enforced anti-discrimination laws in the workplace including rules protecting LGBTQ people.

The organization is also in court fighting the administration’s effort to “prevent federal workers at National Guard facilities from being able to access bathrooms that correspond with their gender and their needs,” Perryman noted.

“Those types of matters that really involve the mechanics of the federal government and how it’s being weaponized against the American people, those are areas where Democracy Forward has had particular expertise and has been a core player,” she said.

The organization is active at the state and local level, too, including on matters that have “significant overlay with the LGBTQ community,” Perryman said. She pointed to lawsuits where, “We’ve sued on the decimation of the library sciences,” on behalf of the Institute of Museum and Library Sciences, important litigation given how state-level censorship has disproportionately targeted LGBTQ books, curricula, and speech.

Stronger together

“What I’m looking forward to as we move forward, I mean, this is a hard time, and it’s a hard time for the country,” Perryman said. “We know there’s a lot of fear.”

Reflecting on the resilience of LGBTQ people and communities specifically during Pride month, Perryman said, “what I’m looking forward to at our work at Democracy Forward is how we get to be alongside the people and communities in this country that even though they are afraid, and even though they are scared, they are making the choice to choose courage and to step forward and say, we can build some community together.”

“We see that happening in our work every day with all of these amazing plaintiffs and groups that we are representing,” she added. “While big, storied institutions are not standing up the way they need to, in this time, the American people really are and at Democracy Forward, we get a front row seat to that, which is a real honor.”

“As I think about the months ahead, which will be challenging, I’m just really looking forward to continuing to have a team that’s able to be there for people that in this time are choosing courage,” Perryman said.

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U.S. Federal Courts

Judge temporarily blocks executive orders targeting LGBTQ, HIV groups

Lambda Legal filed the lawsuit in federal court

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President Donald Trump (Washington Blade photo by Michael Key)

A federal judge on Monday blocked the enforcement of three of President Donald Trump’s executive orders that would have threatened to defund nonprofit organizations providing health care and services for LGBTQ people and those living with HIV.

The preliminary injunction was awarded by Judge Jon Tigar of the U.S. District Court for the Northern District of California in a case, San Francisco AIDS Foundation v. Trump, filed by Lambda Legal and eight other organizations.

Implementation of the executive orders — two aimed at diversity, equity, and inclusion along with one targeting the transgender community — will be halted pending the outcome of the litigation challenging them.

“This is a critical win — not only for the nine organizations we represent, but for LGBTQ communities and people living with HIV across the country,” said Jose Abrigo, Lambda Legal’s HIV Project director and senior counsel on the case. 

“The court blocked anti-equity and anti-LGBTQ executive orders that seek to erase transgender people from public life, dismantle DEI efforts, and silence nonprofits delivering life-saving services,” Abrigo said. “Today’s ruling acknowledges the immense harm these policies inflict on these organizations and the people they serve and stops Trump’s orders in their tracks.”

Tigar wrote, in his 52-page decision, “While the Executive requires some degree of freedom to implement its political agenda, it is still bound by the constitution.”

“And even in the context of federal subsidies, it cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous,” he said.

Without the preliminary injunction, the judge wrote, “Plaintiffs face the imminent loss of federal funding critical to their ability to provide lifesaving healthcare and support services to marginalized LGBTQ populations,” a loss that “not only threatens the survival of critical programs but also forces plaintiffs to choose between their constitutional rights and their continued existence.”

The organizations in the lawsuit are located in California (San Francisco AIDS Foundation, Los Angeles LGBT Center, GLBT Historical Society, and San Francisco Community Health Center), Arizona (Prisma Community Care), New York (The NYC LGBT Community Center), Pennsylvania (Bradbury-Sullivan Community Center), Maryland (Baltimore Safe Haven), and Wisconsin (FORGE).

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U.S. Federal Courts

Judge blocks Trump’s order for prison officials to withhold gender affirming care

ACLU represents plaintiffs in the case

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U.S. Attorney General Pam Bondi, who oversees the Federal Bureau of Prisons (Washington Blade photo by Michael Key)

A federal judge on Tuesday temporarily blocked the enforcement of President Donald Trump’s executive order compelling officials with the Bureau of Prisons to stop providing gender-affirming hormone therapy and accommodations to transgender people.

News of the order by Judge Royce Lamberth of the U.S. District Court for the District of Columbia, a Republican appointed by former President Ronald Reagan, was reported in a press release by the ACLU, which is representing plaintiffs in the litigation alongside the Transgender Law Center.

Pursuant to issuance of the executive order on Jan. 20, the the BOP announced that that “no Bureau of Prisons funds are to be expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex,” while also prohibiting clothing and commissary items the agency considers incongruous with a person’s birth sex, and requiring all BOP staff to misgender transgender people.

Two transgender men and one transgender woman, each diagnosed with gender dysphoria by prison officials and prescribed hormone therapy, were either informed that their treatment would soon be suspended or were cut off from their treatment. On behalf of America’s 2,000 or so transgender inmates, they filed a class action lawsuit against the Trump administration and BOP in March.

The ACLU noted that while Lamberth’s order did not address surgeries, it did grant the plaintiff’s motion for a class certification and extended injunctive relief to the full class, which encompasses all persons who are or will be incarcerated in BOP facilities and have a current medical diagnosis of gender dysphoria or who receive that diagnosis in the future,” per the press release.

“Today’s ruling is made possible by the courageous plaintiffs who fought to protect their rights and the rights of transgender people everywhere,” said Shawn Thomas Meerkamper, managing attorney at the Transgender Law Center. “This administration’s continued targeting of transgender people is cruel and threatens the lives of all people. No person—incarcerated or not, transgender or not—should have their rights to medically necessary care denied. We are grateful the court understood that our clients deserve basic dignity and healthcare, and we will continue to fight alongside them.”

“Today’s ruling is an important lifeline for trans people in federal custody,” said Michael Perloff, senior staff attorney at the ACLU of D.C. “The ruling is also a critical reminder to the Trump administration that trans people, like all people, have constitutional rights that don’t simply disappear because the president has decided to wage an ideological battle.”

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