Cultural Issues in the Courts: March 2017 Update

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March 10, 2017

School bathroom policies, abortion waiting periods, prayers before government meetings, and religious freedom protections are all subjects of this issue of the Executive Briefing Judicial Update.

Gender Identity, Public Schools ― U.S. Supreme Court

The U.S. Supreme Court will not hear the much-anticipated transgender bathroom case, Gloucester County School Board v. G.G. ― at least not yet. The case had been scheduled for oral arguments in late March, but the Court ordered the case sent back to the 4th U.S. Circuit Court of Appeals for further proceedings. The Court’s action followed the new Administration’s revocation of an Obama-era policy from the Departments of Education (DOE) and Justice (DOJ) that redefined the term “sex” under the federal education law, known as Title IX, to include gender-confused boys and girls. That redefinition resulted in the DOE and DOJ ordering schools to open up locker rooms, shower facilities and restrooms to gender-confused boys and girls identifying as the opposite sex, or lose federal funding. The government mandate triggered counter lawsuits from students who say such policies violate their privacy and safety.  Although this is good news for now, it has been called “more of a breather than a win,” as this case or others like it ― attempting to impose a radical gender ideology in the nation’s schools ― could return to the Supreme Court in the future using different legal arguments. (See, for example, the Pennsylvania case below).

Gender Identity, Public Schools ― U.S. Supreme Court

Just days before the Supreme Court sent Gloucester back to the lower court, 53 U.S. companies, including such household names as Apple, IBM, Amazon, eBay, Gap and Microsoft, joined a “friend of the court” brief in support of forcing schools to open locker rooms, showers, and bathrooms to gender-confused students, who wish to use the facilities of the opposite-sex.

Gender Identity, Public Schools ― Pennsylvania

Meanwhile, a different argument for allowing gender-confused students in the opposite sex locker room, restrooms and showers at schools has received a “thumb’s up” in court. A federal judge in Pennsylvania has side-stepped the Title IX issue and temporarily required a school district to allow three transgender-identified students to use the bathroom facilities of their choice, holding that the U.S. Constitution’s “equal protection” clause of the 14th Amendment requires it.

Abortion, 24-Hour Waiting Period ― Florida

The Florida Supreme Court, by a 4-2 vote, has blocked a state law requiring a 24-hour waiting period for a woman seeking an abortion, calling it a "significant restriction" on the right to abortion. This ruling comes despite the fact that 27 states have passed such laws.

Religious Freedom, Government Meeting Invocations ― Michigan

Prayers offered prior to a Michigan county government meeting violate the First Amendment’s prohibition of the “establishment of religion” and exceed the guidance provided by previous U.S. Supreme Court decisions, a federal three-judge panel at the 6th U.S. Circuit Court of Appeals has ruled. HOWEVER: In an unusual turn of events, the entire complement of 6th Circuit judges (called an “en banc” court) vacated (i.e., ordered “null and void”) the three-judge panel’s decision and all 16 judges will re-hear the case. This likely means that a majority of judges on that Circuit think the first result was wrong.

Religious Freedom, Sexual Orientation/Gender Identity (SOGI) Ordinances ― Arkansas

Any city that passes a local ordinance in Arkansas that grants special protected status for sexual orientation and gender identity (SOGI) violates a state law reserving civil rights legislation for the state Legislature, the Arkansas Supreme Court has held.  These types of state laws are widely viewed as necessary to provide a uniform set of expectations for businesses, government contractors and the public. SOGI ordinances are also problematic for religious freedom, as these types of laws require business owners and contractors to violate their religious beliefs in order to do business there.