National
Catholic adoption agency refusing to certify LGBT homes wins in court
Michigan non-profit sued after state required non-discrimination
A federal judge has in ruled in favor of a taxpayer-funded Catholic adoption agency in Michigan refusing to certify LGBT couples as qualified to take children into their homes.
U.S. District Judge Robert Jonker, a George W. Bush appointee, issued a preliminary injunction Thursday in favor of St. Vincent, a faith-based non-profit based in Lansing, Mich., concluding the state is targeting the agency for its religious beliefs.
“This case is not about whether same-sex couples can be great parents,” Jonker writes. “They can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State. What this case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.”
The case was filed in April after a settlement was reached in a separate case filed by the American Civil Liberties Union challenging Michigan’s religious freedom adoption law, which allowed faith-based to turn away LGBT families seeking to adopt. Under the settlement, Michigan adoption agencies going forward were prohibited from discriminating against LGBT couples.
Shortly afterward, the Michigan Department of Health & Human Services opened an investigation into St. Vincent under allegations wasn’t complying with the settlement’s non-discrimination terms. Anticipating it would be found out of compliance, St. Vincent preemptively filed the lawsuit seeking an injunction to continue to certify families for child placement consistent with its religious beliefs.
St. Vincent made the case Michigan is violating freedom of religion and speech under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by threatening to penalize the agency for refusing to certify LGBT families.
Jonker grants his preliminary injunction to St. Vincent on the basis that the agency has demonstrated harm imposed by the settlement and the likelihood of success in court.
“St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application,” Jonker writes. “St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the state-mandated orthodoxy, even though the state is not compensating them for the review services anyway.”
Making the case St. Vincent isn’t anti-LGBT, Jonker writes St. Vincent’s “does not prevent any couples, same-sex or otherwise, from fostering or adopting.” The agency, Jonker writes, refers LGBT and unmarried couples seeking certify to adopt to other agencies willing to provide that endorsement.
LGBT couples, Jonker writes, can also adopt children at St. Vincent through the Michigan Adoption Resource Exchange (MARE) website, which allows all Michigan families access to all children adoption agencies (so long as they obtained certification at an agency other than St. Vincent).
“St. Vincent has never prevented a same-sex couple from fostering or adopting a child. St. Vincent has actually placed children through the MARE system with same-sex adoptive parents,” Jonker writes. “And St. Vincent provides parenting support groups at which same-sex parents are welcome and, in fact, attend. This is non-discriminatory conduct consistent with everything the State says it is trying to promote.”
Heavily cited by Jonker is the decision of Michigan Attorney General Dana Nessel, a lesbian, to no longer defend in litigation the state’s religious freedom adoption signed ged by former Michigan Gov. Rick Snyder.
As the law was being challenged in court during the 2018 election, Nessel campaigned on refusing to defend the law, asserting she “could not justify using the state’s money” to defend “a law whose only purpose is discriminatory animus.” Upon winning the election, Nessel helped reached the settlement for non-discrimination in Michigan adoption agencies.
Jonker writes the record demonstrates Nessel is targeting St. Vincent’s for its religious beliefs, therefore strict scrutiny applies, to the state’s enforcement of the settlement.
“Under the Attorney General’s current interpretation of Michigan law and the parties’ contracts, St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types,” Jonker writes.
The Washington Blade has placed a request in with the Michigan attorney general’s office seeking comment on the decision.
Representing St. Vincent’s in the case was the Becket for Religious Liberty, which has defended groups like Hobby Lobby and Little Sisters of the Poor.
Lori Windham, a religious liberty attorney with Becket, hailed the decision on Twitter as a “major victory for faith-based foster care and adoption in Michigan.”
“Thanks to the ruling, St. Vincent will be able to continue serving foster children in Michigan and their selfless foster families,” Windham tweeted. “More than 13,000 foster kids in Michigan need help, and we need all hands on deck.”
Jay Kaplan, LGBT Project staff attorney of the American Civil Liberties Union of Michigan, criticized the decision as “the individual religious beliefs of foster care agencies ahead of the welfare of children.”
“This will not facilitate foster and adoptive placements for children in need,” Kaplan said. “Instead, it will allow agencies to turn away same-sex foster parents who are able to provide supportive and loving homes for these children.”
Although the ruling is focused on family certification at St. Vincent, Kaplan told the Blade the decision will have broader impact on LGBT people in Michigan.
“The reality is…St. Vincent will place kids in homes of families that they work with and if they have refused to work with same-sex couples, that means the kids that they are placing will not be placed in LGBT homes,” Kaplan said. “I think this ruling could be broadly interpreted because its impact on kids and their ability to get placed with LGBT parents who are able to provide them with stable, loving homes.”
Another defendant in the case is the Department of Health & Human Services, which has under the Obama administration instituted regulations prohibiting federal contractors discriminating on the basis of sexual orientation. (The Trump administration has kept the regulations — for now — but has granted at least one waiver to states seeking exemption for faith-based adoption agencies.)
Jonker’s decision also enjoins the U.S. government from enforcing its regulations to penalize St. Vincent. A Justice Department spokesperson said the administration is “reviewing the decision.”
Also in the decision, Jonker finds other named plaintiffs in the case — Chad and Melissa Buck, who have adopted four siblings through St. Vincent and work at the agency, and Shamber Flore — who was placed in the agency as a child before she was adopted — don’t have standing to continue in the case.
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Federal Government
Republican state AGs challenge Biden administration’s revised Title IX policies
New rules protect LGBTQ students from discrimination
Four Republicans state attorneys general have sued the Biden-Harris administration over the U.S. Department of Education’s new Title IX policies that were finalized April 19 and carry anti-discrimination protections for LGBTQ students in public schools.
The lawsuit filed on Tuesday, which is led by the attorneys general of Kentucky and Tennessee, follows a pair of legal challenges from nine Republican states on Monday — all contesting the administration’s interpretation that sex-based discrimination under the statute also covers that which is based on the victim’s sexual orientation or gender identity.
The administration also rolled back Trump-era rules governing how schools must respond to allegations of sexual harassment and sexual assault, which were widely perceived as biased in favor of the interests of those who are accused.
“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
“Florida is suing the Biden administration over its unlawful Title IX changes,” Florida Gov. Ron DeSantis wrote on social media. “Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth.”
After announcing the finalization of the department’s new rules, Education Secretary Miguel Cardona told reporters, “These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights.”
The new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, a question that is addressed in a separate rule proposed by the agency in April.
LGBTQ and civil rights advocacy groups praised the changes. Lambda Legal issued a statement arguing the new rule “protects LGBTQ+ students from discrimination and other abuse,” adding that it “appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
United Methodist Church removes 40-year ban on gay clergy
Republican state AGs challenge Biden administration’s revised Title IX policies
University students have a right to protest
Former CAMP Rehoboth official sentenced to nine months in prison
Christian Siriano to serve as grand marshal of Annapolis Pride Parade
Md. governor signs Freedom to Read Act
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
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