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Obama administration’s guidelines interpreting gender identity as sex temporarily blocked by federal district court

Transgender Rights

Texas state sealEleven states recently filed a lawsuit in a federal district court in Texas to challenge the Obama administration’s guidance on gender identity issues as they impact employment and education. This week, the federal judge hearing the case issued a preliminary injunction blocking the new rules from going into effect while the case awaits trial.

The new guidance suggests that Title IX of the 1972 Education Amendments, which prohibits certain discrimination in education based on sex, should be read to include gender identity.

The Fourth Circuit Court of Appeals has decided a similar case with a conflicting result: the appeals court gave deference to the agency interpretation of its own regulations based on a doctrine found in two Supreme Court cases, Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins.

In the Texas case, decided by Judge Reed O’Connor (who last year blocked new rules under the Family and Medical Leave Act (FMLA) which were written to help same-sex couples) deference was not granted to the new rules.

Instead, the judge found the underlying statute “unambiguous”, writing that the provision referring to sex “meant the biological and anatomical differences between male and female students as determined at their birth.”

In a technical part of the opinion, the judge suggested that the administration and its agencies should have provided “notice and comment” on the changes to the regulations interpreting the term ‘sex’. This is a requirement under the Administrative Procedure Act, but only under certain circumstances.

The judge held that the preliminary injunction should take effect nationwide. It’s not clear how it will apply in future cases.

Some of the LGBT legal organizations involved in the case wrote, “”A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination. This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students. So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly. The scope of this injunction has no effect on the ability of other courts or lawyers representing transgender people to continue to rely on the federal government’s interpretations of Title IX or on prior decisions that have reached similar conclusions about the scope of federal sex discrimination laws.

“The court’s misguided decision targets a small, vulnerable group of young people – transgender elementary and high school students – for potential continued harassment, stigma and abuse.”

The decision is likely to be appealed to the Fifth Circuit Court of Appeals, which is a rather conservative appeals court.

The states involved in the lawsuit, according to the statement by the legal organizations, are: “Alabama, Georgia, Kentucky (through its governor), Louisiana, Mississippi (through its governor), Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, and the Arizona Department of Education, the Heber-Overgaard Unified School District in Arizona, Harrold Independent School District in Texas, and Maine Governor Paul LePage.”

Thanks to Equality Case Files for these filings

40 Comments

  • 1. allan120102  |  August 23, 2016 at 7:50 pm

    Sinaloa inching its way to extend marriage equality to ss couples. http://riodoce.mx/gob-politica/congreso-estatal/r

  • 2. Fortguy  |  August 23, 2016 at 10:07 pm

    Yes, while Texas AG Ken Paxton is leading the schoolhouse Potty Police while his cohort Lt. Gov. Dan Patrick campaigns around the state as head of the Latrine Marine, Paxton now is suing the feds to enable healthcare providers to deny services to transgender patients.

    Alexa Ura, The Texas Tribune: Texas Leading Suit Over Federal Transgender Health Policy

    All of this running around from one court to another in order to hate on people all the while defending yourself from criminal and civil charges in state and federal courts from your own severe ethical shortcomings must be awfully exhausting, Mr. Paxton. You should have at least waited until October rather than the heat of a brutal Texas August to do all your court-hopping in order protect yourself from heat stroke.

  • 3. Sagesse  |  August 24, 2016 at 5:35 am

    The Right’s Favorite Anti-LGBT Doctor Strikes Again [Daily Beast]

    "Former Johns Hopkins psychiatry chair Dr. Paul McHugh has a long history of staking out anti-LGBT positions. But The Washington Examiner and other conservative media outlets would have you believe that McHugh’s statements on LGBT issues are significant because he is a “prominent psychiatrist.”

    "At least, that’s how the Examiner referred to him after he and Arizona State statistician Dr. Lawrence Mayer published a lengthy paper casting doubt on the scientific consensus around sexual orientation and gender identity. That paper appears in a recent issue of a journal called The New Atlantis and it has already generated the predictable far-right lovefest.

    “Almost Everything the Media Tell You About Sexual Orientation and Gender Identity Is Wrong,” the Daily Signal gleefully declared. The Daily Signal is owned by The Heritage Foundation, a conservative think tank."
    http://www.thedailybeast.com/articles/2016/08/23/

  • 4. bayareajohn  |  August 24, 2016 at 10:27 am

    The security certificate is screwed up or expired again for links on the side "recent comments" leading to alarming warnings.

  • 5. bayareajohn  |  August 24, 2016 at 10:29 am

    Well, the Daily Signal knows that people should not trust everything they read. In fact, they work hard to make it true.

  • 6. Fortguy  |  August 24, 2016 at 12:29 pm

    Here's more detail on Ken Paxton's campaign against transgender health services:

    Charles Kuffner, Off the Kuff: Paxton continues his war on transgender people

    And now for the surprise of the day:

    Tom Benning, The Dallas Morning News: Ken Paxton agrees to have dinner with Denton transgender boy and his family

    Will wonders never cease! Maybe Paxton might learn something.

  • 7. VIRick  |  August 24, 2016 at 2:15 pm

    North Carolina Case Unaffected by Texas Anti-Transgender Court Ruling

    Raleigh NC — In "United States v. North Carolina," supporters of North Carolina‘s bathroom rules have urged a federal judge to closely consider a ruling in Texas that has temporarily blocked the Obama administration’s ability to withhold federal money from schools that don’t let transgender students use bathrooms matching their gender identity.

    But opponents and independent legal experts said Tuesday, 23 August 2016, that the ruling in Texas won’t affect the North Carolina litigation. “Although it sounds like this is all part of the same pot, the fact is there are multiple pots in the kitchen and different things cooking in the different pots,” said Boston College law professor Kari Hong, who studies family law and LGBT rights. “The law is very good at compartmentalizing.”

    Attorneys for Gov. Pat McCrory, state legislative leaders, and other defendants told District Judge Thomas Schroeder in Winston-Salem that the ruling in Texas “is pertinent and significant” to their defense of North Carolina law, which requires transgender people to use public restrooms matching the sex on their birth certificates.

    Late Sunday, 21 August 2016, District Judge Reed O’Connor in Wichita Falls TX, in "State of Texas v. USA," blocked the Obama administration from requiring public schools to let transgender students use the bathrooms consistent with their gender identity. Texas is one of 13 states challenging the White House directive; North Carolina is not among them.

    The state law’s opponents, however, said the Texas decision doesn’t trump a ruling by the 4th Circuit Court of Appeals in Richmond, in "G.G. v. Gloucester County School Board," whose decision supporting a transgender student’s bathroom choice in Virginia sets a precedent for the Carolinas as well. That case is now before the US Supreme Court, which said a Virginia school board can block the student from using the boys’ room until it rules.

    “The Texas preliminary injunction has no effect whatsoever on this case, as it is directed only against the federal government defendants in the Texas case, and enjoins them from enforcing the relevant guidelines only against the 13 state plaintiffs in that case, which do not include North Carolina,” attorneys for the ACLU and Lambda Legal wrote. Also, the Justice Department asked Schroeder to declare that North Carolina’s HB 2 violates separate employment and education provisions of civil rights law, Wettach said, making the court fights distinct.
    http://www.lgbtqnation.com/2016/08/experts-say-nc

  • 8. VIRick  |  August 24, 2016 at 4:16 pm

    Alaska: Juneau Approves Non-Discrimination Ordinance

    Juneau AK — On 22 August 2016, lawmakers in Alaska’s capital city approved a non-discrimination ordinance that would include sexual orientation and gender identity. The Juneau Assembly approved the measure by an 8-1 margin. The "Juneau Empire," a local newspaper, reported roughly 70 people who support the ordinance marched to Juneau City Hall before the vote. Only two people testified against the ordinance, which will take effect in 30 days.

    “This is truly a historic night for Juneau,” said Jenny Jahn, chair of the Southeast Alaska Gay and Lesbian Alliance, in a press release the Human Rights Campaign released. The ACLU of Alaska also applauded the ordinance’s passage. http://www.washingtonblade.com/2016/08/24/juneau-

  • 9. VIRick  |  August 24, 2016 at 4:56 pm

    Texas: New Federal Suit Seeks to Overturn Pro-Trans Rule in Obamacare

    A new lawsuit, "Franciscan Alliance v. Burwell," filed by religious-affiliated health care providers and five states, seeks to overturn a regulation under Obamacare prohibiting discrimination against transgender people in transition-related care, including gender reassignment surgery. The 79-page complaint, filed Tuesday, 23 August 2016, in federal court in Texas, alleges the regulation improperly redefines the definition of “sex” under federal law, forces healthcare professionals to disregard their medical judgment and religious beliefs, and undermines state authority to regulate health care.

    “Ultimately, this case boils down to a very simple question of statutory interpretation: Can HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States?” the complaint says. “The answer is ‘no,’ and the new regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.”

    Defying legal precedent establishing that transgender discrimination amounts to gender discrimination under current law, the lawsuit seeks an injunction barring enforcement of the regulation on the basis it is invalid under the Administrative Procedure Act, the Religious Freedom Restoration Act, and the First, Fifth, and Fourteenth Amendments to the US Constitution.

    In May, the Department of Health & Human Services made final a rule interpreting Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of gender in health care, to apply to transgender and gender-nonconforming people, including for the purposes of transition-related care. Under the rule, a health care provider must provide transition-related care, including gender reassignment surgery, to a transgender person if that provider offers a similar service, such as hysterectomies.

    The lawsuit takes issue with the lack of a religious exemption in the regulation, pointing out Title IX of the Education Amendments of 1972, on which the rule is based, affords such a carve out.

    Leading the litigation on behalf of the five states, Texas, Wisconsin, Nebraska, Kentucky, and Kansas, is Texas Attorney-General Ken Paxton, who has filed several lawsuits against the Obama administration for regulations advancing LGBT rights. Representing the religious-affiliated providers is the Becket Fund for Religious Liberty, the same legal group which represented Hobby Lobby and Little Sisters of the Poor in their earlier challenges to the Affordable Care Act.

    The case has been assigned to District Judge Reed O’Connor, the same judge who on the day before the lawsuit was filed issued an order blocking the enforcement of guidance from the Obama administration prohibiting schools from discriminating against transgender students, and barring them from using the restroom consistent with their gender identity.

    Mara Keisling, executive director of the National Center for Transgender Equality, called the lawsuit “a thinly veiled attack on transgender people. The ACA rule does not mandate what kind of care doctors can and cannot give,” Keisling said. “It bans discrimination. It’s there to make sure that transgender people can get the treatment we need without facing harassment – or worse. Over a dozen federal courts have confirmed that the term ‘sex’ in federal non-discrimination laws, including the ACA, applies to gender identity.” Keisling said the regulation not only ensures transition-related care for transgender people, but prohibits medical providers from discriminating against transgender people seeking care for other health issues “from colds to cancer." Keisling said the regulation not only ensures transition-related care for transgender people, but prohibits medical providers from discriminating against transgender people seeking care for other health issues “from colds to cancer.”

  • 10. VIRick  |  August 24, 2016 at 5:45 pm

    Citation for previous post:
    http://www.washingtonblade.com/2016/08/23/new-law

  • 11. theperchybird  |  August 24, 2016 at 9:53 pm

    Colombia's own Scalia who held up social issue lawsuits, especially LGBT-related, may become the first Constitutional Court judge to lose his seat and face legal punishment after the Senate voted 55-5 to proceed with a hearing on misconduct and suspend him in the meantime. This is the first time ever a CC judge has been suspended from duty.

    He stands accused of taking a bribe from a large company in return for casting his vote in their favor. Now the Senate will hold an actual vote on taking him out and then he would be tried before the Supreme Court (different court) and faces possible jail time and fines aside from an ousting.
    http://www.semana.com/nacion/articulo/caso-jorge-

  • 12. VIRick  |  August 24, 2016 at 10:34 pm

    Colombia: Pretelt Suspendido de la Corte Constitucional

    Colombia: Pretelt Suspended from the Constitutional Court

    En histórica decisión, en el voto de 55-5, el Senado Colombiano admitió la acusación contra el magistrado de la Corte Constitucional por el delito de concusión. Afrontará un juicio político en el Congreso y uno penal en la Corte Suprema de Justicia.

    Este 24 de agosto, Jorge Ignacio Pretelt pasó a la historia. No por las consecuencias de alguna de sus sentencias en su calidad de magistrado de la Corte Constitucional, sino porque se convirtió en el primer aforado en ser suspendido de su cargo. http://www.semana.com/nacion/articulo/caso-jorge-

    In a landmark decision, voting 55-5, the Colombian Senate accepted the charges against a justice of the Constitutional Court for the crime of extortion. He will face impeachment in the Congress and a trial in the Supreme Court.

    Today, 24 August 2016, Jorge Ignacio Pretelt made history. Not for the consequences of some of the statements in his capacity as justice of the Constitutional Court, but because he became the first member to be suspended from office.

    And yes, Pretelt, the eminently bribable, extreme homophobe sitting on Colombia's Constitutional Court, is the very same Pretelt who did his absolute best to delay, detain, derail, and otherwise obfuscate the recent Marriage Equality decision finally handed down by Colombia's Constitutional Court in a landmark 6-3 decision issued on 7 April 2016.

  • 13. VIRick  |  August 24, 2016 at 11:34 pm

    "…. aside from an ousting."

    Why, when I read that the first time, knowing the mind-set of homophobes, did I read it as "aside from an outing?"

  • 14. Sagesse  |  August 25, 2016 at 6:54 am

    I don't think judge shopping is supposed to be this easy. Site requires registration, but permits 5 free articles/mo.

    Why Conservative States Handpicked This Texas Judge for Transgender Bathroom Challenge [law.com]
    http://www.law.com/sites/almstaff/2016/08/24/why-

  • 15. VIRick  |  August 25, 2016 at 9:42 am

    Orlando Hospitals Won’t Charge Pulse Survivors for Medical Assistance

    Two Orlando hospitals have announced they will not bill survivors of the Pulse nightclub mass shooting for providing medical assistance during the tragedy. The move will write off a total of about $5.5 million in hospital bills.

    “The Pulse shooting was a horrendous tragedy for the victims, their families, and our entire community,” Orlando Health President and CEO David Strong told the "Orlando Sentinel." “During this very trying time, many organizations, individuals, and charities have reached out to Orlando Health to show their support. This is simply our way of paying that kindness forward.”

    Orlando Health’s main hospital, Orlando Regional Medical Center, treated 44 of the dozens of victims of the worst mass shooting in American history. Nine patients died at the hospital after arrival. The facility is located just blocks away from the nightclub.

    The company says they will bill the insurance for anyone with coverage, but any out-of-pocket expenses will be absorbed by the medical providers. The families of those who died will also not be charged.

    Florida Hospital, however, will not even charge insurance providers for the care already received and will cover any follow-up surgeries and doctor visits for survivors. “It was incredible to see how our community came together in the wake of the senseless Pulse shooting,” said Daryl Tol, Florida Hospital’s president and CEO. “We hope this gesture can add to the heart and goodwill that defines Orlando.” http://www.lgbtqnation.com/2016/08/orlando-hospit

  • 16. VIRick  |  August 25, 2016 at 9:56 am

    Oklahoma: 40 Votes Separate Gay Congressional Candidate from Opponent

    Oklahoma City — The runner-up in a Democratic runoff election for an Oklahoma congressional seat in which the two candidates are separated by only 40 votes said Wednesday, 24 August 2016, he has not decided whether to seek a recount, as the front-runner refocused his campaign against the Republican incumbent in November’s general election.

    Former state Sen. Al McAffrey held a narrow edge following Tuesday’s runoff against retired university professor Tom Guild for the Democratic nomination in central Oklahoma’s 5th Congressional District. With all 273 precincts reporting, McAffrey led by 40 votes out of more than 16,000 cast.

    The runoff was a rematch of the 2014 Democratic runoff election in which McAffrey defeated Guild by more than 1,600 votes. McAffrey then lost in the general election to Republican US Rep. Steve Russell, who received 60 percent of the vote.

    McAffrey, who was the first openly gay person ever elected to the Oklahoma Legislature when he won a state House seat in 2006, is vying to become the first Democrat to represent the district in more than 40 years. Democrat John Jarman represented the district for more than two decades before switching to Republican in 1975. It’s been in GOP hands ever since. While voters in Oklahoma City’s core have traditionally supported Democrats, voters in the suburbs and other parts of the district predominantly support GOP candidates.
    http://www.lgbtqnation.com/2016/08/oklahoma-40-vo

  • 17. VIRick  |  August 25, 2016 at 8:22 pm

    7th Circuit Court: Sexual Orientation Discrimination Case Appealed en Banc

    Per Equality Case Files:

    Today, 25 August 2016, in "Hively v. Ivy Tech," an employee's Title VII sexual orientation discrimination claim against an Indiana school, Plaintiff Kimberly Hively asked the 7th Circuit Court of Appeals to reconsider the three-judge panel opinion holding that sexual orientation discrimination is not covered under Title VII's prohibition against sex discrimination. (That earlier decision is here: http://bit.ly/2aBAZqN) Her petition for rehearing is linked here: http://files.eqcf.org/cases/15-1720-46/

    Also filed today were amicus briefs in support of the petition:
    NCLR and GLAD: http://bit.ly/2bDX8DM
    EEOC: http://bit.ly/2bKlSNC
    ACLU, et al: http://bit.ly/2bL6pMd

  • 18. VIRick  |  August 25, 2016 at 9:12 pm

    Mexico: the PRD Proudly Shows its Colors

    The PRD, the major political party in Mexico which has always supported marriage equality, in a major push to flip thinking within the PRI, while simultaneously embarrassing the intransigent PAN, has adopted a new alternate flag to symbolize their party. It consists of their traditional "radiant sun" symbol in black, superimposed onto the rainbow flag.

    At the same time, the PRD lambasted the "iglesia" for violating the secular state with their multiple attempts to repudiate marriage equality. For a view of PRD's new flag, see:
    https://twitter.com/hashtag/MatrimonioIgualitario

    Note: In PRD language, undenominated, lower-case "iglesia" is their less-than-subtle way of rendering the concept as a diminutive, and thus diminishing, the significance of the Catholic Church.

  • 19. VIRick  |  August 26, 2016 at 2:33 pm

    Federal Judge Orders UNC Not to Enforce “Bathroom” Provision of Anti-LGBT Law

    This afternoon, 26 August 2016, in "Carcaño v. McCrory," in a limited ruling granting a preliminary injunction, a federal judge barred the University of North Carolina from enforcing the “bathroom” provision of the state’s anti-LGBT HB2 law against those transgender individuals who sued the state following the passage of the law.

    In the ruling, District Court Judge Thomas Schroeder noted, “Ultimately, the record reflects what counsel for Governor [Pat] McCrory candidly speculates was the status quo ante in North Carolina in recent years: some transgender individuals have been quietly using bathrooms and other facilities that match their gender identity, without public awareness or incident.”

    The case was brought by the ACLU on behalf of several North Carolina residents, including professors and students at UNC schools. After reviewing the record in the case and relevant case law, Schroeder concluded a preliminary injunction of part of the law was appropriate. Specifically, he pointed to a case from Virginia in which the 4th Circuit Court of Appeals, from which appeals from North Carolina are heard, held that the Obama administration’s interpretation of Title IX’s sex discrimination provision, as including anti-transgender discrimination, was permitted.

    “Accordingly, the court will enjoin UNC from enforcing Part I against the individual transgender Plaintiffs until the court reaches a final decision on the merits in this case,” Schroeder concluded. He ruled that plaintiffs did not make the same case that they were likely to succeed on an equal protection challenge to the law, and did not rule at this time on their due process-related claim. Finally, he also noted that “this injunction returns the parties to the status quo ante as it existed in Title IX facilities prior to Part I [of HB2]’s passage in March 2016.”
    https://www.buzzfeed.com/chrisgeidner/federal-jud

  • 20. Sagesse  |  August 26, 2016 at 3:11 pm

    Seventh Circuit Invites Supreme Court to Make Sexual Orientation Discrimination Actionable Under Title VII [Lexology]

    "Bound by its own precedent, the Seventh Circuit Court of Appeals again held that Title VII of the Civil Rights Act of 1964 does not redress sexual orientation discrimination in Hively v. Ivy Tech Community College, (7th Cir. July 28, 2016). The opinion could have ended there, and perhaps it would have, if penned by any other judge. Instead, Judge Rovner, writing for the panel, made a case for the Supreme Court of the United States to review the Seventh Circuit’s decision in Hively…."
    http://www.lexology.com/library/detail.aspx?g=78f

  • 21. VIRick  |  August 26, 2016 at 3:24 pm

    Maine: Gov. Le Page Calls Lawmaker "Cocksucker" in Voicemail

    The Republican governor of Maine, who has a history of bizarre and extreme comments, left a voicemail message filled with profanities and the use of the anti-gay slur, “cocksucker,” for a political opponent in his state. Maine Gov. Paul Le Page said in the same voicemail he wanted the recipient of the message, State Rep. Drew Gattine, to make the recording public and said, “I’m after you.” The recording was duly made public today, 26 August 2016, by the "Portland Press Herald."

    “I would like to talk to you about my being a racist, you cocksucker,” LePage said in the message. “I want to talk to you. You want, I want you to prove that I’m a racist. I’ve spent my life helping black people, and you little son-of-bitch, socialist cocksucker.”

    LePage, a Tea Party Republican once dubbed by Politico as “America’s craziest governor,” has said drug dealers impregnate white women, blamed undocumented immigrants for raising increased incidents of hepatitis C, tuberculosis, and HIV, and publicly joked he’d like to find the office of the "Portland Press Herald" and "blow it up.”
    http://www.washingtonblade.com/2016/08/26/maine-g

    According to a second account reporting on Gov. Le Page's homophobic obscenities and outrageous accusations, Rep. Gattine, a Democrat, has a wife and two children. http://www.advocate.com/election/2016/8/26/paul-l

  • 22. VIRick  |  August 26, 2016 at 3:35 pm

    Yes, but alternatively, rather than force this issue to the Supreme Court, the 7th Circuit Court of Appeals can also overturn its own precedent by re-hearing this case en banc.

    Perhaps I should have made that point more clear, but that's the specific reason this case, "Hively v. Ivy Tech," was just appealed on 25 August 2016 for an en banc re-hearing by the entire 7th Circuit Court of Appeals. (See the post 3 posts higher up in this same thread for appropriate links and references, per Equality Case Files).

    A Circuit Court's binding precedent can be overturned by two different means:
    1. By the Circuit Court itself re-hearing the case en banc, and ruling to overturn it.
    2. By a Supreme Court decision overturning the precedent (with nationwide application).

  • 23. VIRick  |  August 26, 2016 at 4:35 pm

    Earlier today, in a follow-up tweet from "Senadores del PRD," we have:

    Matrimonio Igualitario es un derecho de toda persona independientemente de su preferencia sexual.

    Marriage Equality is a right of every person independently of their sexual preference. https://twitter.com/hashtag/MatrimonioIgualitario

  • 24. Sagesse  |  August 26, 2016 at 4:36 pm

    These days it's hard to keep track of what's been posted and what hasn't. Either way, it's good to see this debate moving forward in the courts, often in the right direction.

  • 25. VIRick  |  August 26, 2016 at 5:24 pm

    Here's another very recent example of a 3-judge panel in a circuit court of appeals literally begging the plaintiffs to appeal for a full en banc ruling so that out-dated, binding precedent can be duly overturned:

    11th Circuit Court of Appeals Sides With City's Sex Toy Ban — For Now

    By Katheryn Hayes Tucker, "Daily Report," 3 August 2016

    In the case, "Flanigan's Enterprises v. City of Sandy Springs," No. 14-15499, the city of Sandy Springs GA has secured a victory in its battle against stores that sell sex toys, but the suburban Atlanta municipality's long-running litigation war is not over. A panel of three judges at the US Court of Appeals for the 11th Circuit on Tuesday, 2 August 2016, upheld the city's ban on the sale of adult entertainment merchandise. But the panel also suggested that the whole court should review the decision.

    "The appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so," wrote Judge Charles Wilson. Judge Frank Hull and Senior Judge R. Lanier Anderson concurred. The ruling upheld — for now — a district court's dismissal of two complaints that challenge the constitutionality of the city's ordinance prohibiting the sale, rental, or lease of obscene material.

    "We conclude that the Fourteenth Amendment Due Process Clause claim is foreclosed by our prior holding in 'Williams v. Attorney-General of Alabama' (Williams IV), 378 F.3d 1232 (11th Cir. 2004)," Wilson wrote, noting that the court did not review the "Williams" decision en banc. In "Williams," the court upheld an Alabama law against the sale of sex toys, saying the Constitution does not protect the right to buy, sell, and use them.

    "Therefore, unless and until our holding in 'Williams IV' is overruled en banc, or by the Supreme Court, we are bound to follow it. Although we are sympathetic to the appellants' Fourteenth Amendment Due Process claim, we are constrained by our prior precedent in 'Williams IV,' and we are obligated to follow it."

    Sandy Springs has been trying to restrict strip clubs and sex toy stores since the city was created in 2005 by the General Assembly of Georgia, which passed special legislation to incorporate the affluent suburb that had sought that status for three decades. Separately, the Georgia Court of Appeals ruled against the city in June on an effort to have litigation costs — approaching $1 million — covered by its insurer.

    Cary Wiggins, of the Wiggins Law group, represents Flanigan's, a nude dancing club, and sex toy stores in the case. Asked if he plans to ask for en banc review, Wiggins said, "Oh, yeah," adding that he has never seen an opinion quite like this one. Scott D. Bergthold of Chattanooga represents Sandy Springs. His assistant said he does not comment on cases unless directed to do so by his client. http://www.dailyreportonline.com/id=1202764262420

    Note: The "Daily Report" is a Georgia-based legal up-dater, designed for practicing attorneys in Georgia.

  • 26. davepCA  |  August 26, 2016 at 6:13 pm

    Wow, this guy's crazy melt down is all over the news. I was just flipping through some TV channels and it's a headline story on at least three major news programs.

  • 27. VIRick  |  August 26, 2016 at 6:32 pm

    Sagesse, no worries. Your posting here has given me the perfect opportunity to post a related ruling which recently occurred at the 11th Circuit Court of Appeals, vis-a-vis the sale of sex toys, "marital aids," "ticklers," probes, "ass-busters," and other assorted and related paraphernalia, which illustrates this en banc re-hearing process quite clearly, as stated in the court's own words.

    See immediately below.

  • 28. Fortguy  |  August 26, 2016 at 9:23 pm

    Since Rick has broached on the subject of sex toys, let's take a look at the Cocks Not Glocks protest during the first week of classes at UT-Austin now that Texas' campus-carry law is in effect:

    Kriston Capps, The Atlantic's Citylab website: Sex Toys and Gun Laws Collide on Campus in Austin

    You've gotta see that page just for the pictures of the T-shirts with a poignant interpretation of the Gonzales Battle Flag and its "Come And Take It" slogan.

    Then read this:

    Doyin Oyeniyi, Texas Monthly: Cocks Not Glocks, Or How To Fight Absurdity With Absurdity

    This article also has must-see photos and mentions that The Daily Show's "correspondent" Roy Wood Jr. was there. The Daily Show has been on hiatus this week, but I have a feeling that Monday's episode will be ass-slapping hilarious.

  • 29. VIRick  |  August 26, 2016 at 10:30 pm

    Fortguy, and speaking of must-see photos, in the second article, pic #3, that guy is packing quite an eyeful of an item casually hanging down the greater length of his backpack.

    And by the way, within the 5th Circuit (Texas, Louisiana, Mississippi), it is already settled law (as it is in most Circuits) that the sale, distribution, possession, use of sex toys is perfectly legal, any UT campus rules book claiming to follow the state obscenity law notwithstanding. A number of years ago, the state of Texas fought tooth and nail to uphold their statewide ban on the sale, distribution, possession, use of sex toys, but eventually, the priggish state officials (led by none other than then-Attorney-General Greg Abbott, now Governor) saw their beloved ban struck down by the 5th Circuit Court of Appeals. A subsequent appeal for an en banc review was denied by the court.

    In a news article dated 13 February 2008, we note this ruling:

    Fort Worth TX (AP) — A federal appeals court has overturned a statute outlawing sex toy sales in Texas, one of the last states — all in the South — to retain such a ban. The 5th Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by as many as two years in jail, violated the right to privacy guaranteed by the 14th Amendment, and as precedent, cited the Supreme Court ruling in "Lawrence v. Texas."

    Companies that own Dreamer's and Le Rouge Boutique, which sell the devices in its Austin stores, and the retail distributor, Adam & Eve, sued in federal court in Austin in 2004 over the constitutionality of the law. They appealed after a federal judge dismissed the suit and said the US Constitution did not protect their right to publicly promote such devices.

    The 5th Circuit Court of Appeals' ruling against the Texas ban on sex toys simultaneously rendered a similar law banning their sale, distribution, possession, use in Mississippi unenforceable. (At the time, Louisiana did not have such a ban.)

    As best as one can determine, Alabama is the sole remaining state still with an enforceable statewide ban on the sale, distribution, possession, use of sex toys. But hopefully, that ban can soon also be rendered unenforceable due to the idiotic intransigence on the part of city officials in Sandy Springs GA (see post 3 posts above for case details). Georgia itself does not otherwise have a statewide law banning sex toys, nor does Florida, the other two states in the 11th Circuit.

  • 30. Sagesse  |  August 27, 2016 at 5:30 am

    Paramus Catholic alumnus writes letter to administrators after same-sex marriage firing [northjersey.com]

    “The letter garnered support from over 3,000 people in less than 24 hours, including signatures from each PCHS Class—every year from the very first Class of 1969 to the Class of 2016."
    http://www.northjersey.com/news/paramus-catholic-

  • 31. Sagesse  |  August 27, 2016 at 5:40 am

    Maggie Gallagher is sad. We're not.

    Religious liberty hangs in the balance in Governor Pat McCrory’s bid for reelection. [National Review Online]
    http://www.nationalreview.com/article/439420/nort

  • 32. Sagesse  |  August 28, 2016 at 5:27 am

    Rowan County, home of Kim Davis:

    Morehead hosts inaugural LGBTQ pride festival [WKYT]
    http://www.wkyt.com/content/news/Morehead-host-in

  • 33. JayJonson  |  August 28, 2016 at 11:59 am

    Article at New Civil Rights Movement by Claude Summers on anti-LGBT psuedoscience, particularly Paul Cameron, George Reykers, and Mark Regnerus.
    http://www.thenewcivilrightsmovement.com/claude_s

  • 34. allan120102  |  August 28, 2016 at 1:02 pm

    Aruba to vote tomorrow if to allow civil partnerships on the island. If approve it will be helpful to the remaining dutch islands that still not have marriage. https://www.opendemocracy.net/can-europe-make-it/

  • 35. allan120102  |  August 28, 2016 at 1:03 pm

    Aruba to vote tomorrow if to allow civil partnerships on the island. If approve it will be helpful to the remaining dutch islands that still not have marriage. https://www.opendemocracy.net/can-europe-make-it/

  • 36. VIRick  |  August 28, 2016 at 1:45 pm

    Kentucky: Rowan County's First Pride Festival

    Rowan County KY – Morehead had its inaugural LGBTQ Pride Festival, Saturday, 27 August 2016, and support came from all over the state and country. Last year, the city found itself in the middle of the fight over same-sex marriage, when Rowan County Clerk Kim Davis adamantly refused to issue marriage licenses. Festival organizers say they want to show people of the LGBT community that ordinary people in Morehead do support them.

    Arlene Goldberg traveled from Florida. She says she came out to support Morehead's first pride festival because she knows first-hand the fight for equality hasn't been easy. "As a plaintiff in 'Grimsley v. Scott,' I was involved in the federal lawsuit for marriage equality out of Dade County Florida," she told WKYT.

    She's not alone. Michael De Leon and Greg Bourke were the lead plaintiffs in the original Kentucky marriage lawsuit, "Bourke v. Beshear," that went all the way to the Supreme Court. They both live in Louisville and told WKYT it's important for smaller cities in Kentucky to have their own Pride Festivals. "We know there are LGBT people," Bourke said. "There are communities that exist in Eastern Kentucky and Western Kentucky, and it's just so important for them to have their own celebration at home."

    David Shumate traveled from Charleston WV. Two decades ago, he organized Charleston's first pride festival.
    http://www.wkyt.com/content/news/Morehead-host-in

  • 37. VIRick  |  August 28, 2016 at 2:58 pm

    Aruba Parliament to Vote on Civil Partnerships for Same-Sex Couples

    Tomorrow, 29 August 2016, the Aruba Parliament is expected to vote on a civil law amendment granting civil partnerships to same-sex couples. It was proposed by Desiree Sousa Croes, an openly-gay parliamentarian. Legalizing civil partnerships will grant registered same-sex couples equal rights as married couples.

    Although the Netherlands led the way worldwide in legalizing same-sex marriage in 2001, LGBT citizens living in its autonomous territories are still unable to marry. The Dutch Kingdom consists of the Netherlands proper and the Caribbean islands of Aruba, Curaçao, and Sint Maarten, as well as Bonaire, Sint Eustatius, and Saba, known as the BES islands.

    The BES islands were incorporated into the Dutch mainland in 2010 and same-sex couples have been able to marry there ever since. However, in Aruba, Curaçao, and Sint Maarten, which remain autonomous territories in the Kingdom with their own laws, same-sex couples cannot marry or enter civil partnerships. In 2007, following a six-year legal battle, the Dutch Supreme Court obligated the three overseas territories to recognize marriages conducted in the Netherlands proper. But registering their Dutch marriages does not grant the same social security benefits available to heterosexual couples.

    “We already have gay married couples in Aruba. One can go to Bonaire, just a 20-minute flight away, and then afterward, register in Aruba. But we don’t have the same rights, because our laws don’t give the same rights to our marriage,” Croes stated. She and her partner married in Amsterdam in 2012. The result has been a widely overlooked inequality between Dutch LGBT citizens depending on where they reside, overshadowed by the country’s reputation as the most gay friendly in the world.

    “If it passes in Aruba, there will be a totally different dynamic. LGBT rights issues have always been framed as a colonial imposition on the island," said Marlon Reina of FOKA, Curaçao’s main LGBT organization. “The moment another island, like Aruba, and their own parliament, accepts the law, it takes away the idea that marriage equality is imposed by the Dutch government,” he added, stressing the cultural and religious similarities between Curaçao and Aruba.

    Lysanne Charles Arrindell, a leading activist from Sint Maarten, said legalization in Aruba could encourage LGBTs in Sint Maarten to also advocate for civil partnerships (bearing in mind, too, that the French half of the same island, Saint-Martin, has had marriage equality since 2013, as has had the French island of Saint-Barthélemy and the Dutch island of Saba, both quite literally within view from the Dutch side of Sint Maarten).
    https://www.opendemocracy.net/can-europe-make-it/

  • 38. theperchybird  |  August 28, 2016 at 4:24 pm

    The Aruban MP who's lesbian herself, said last month that there was a plan to submit bills for both civil unions and marriage, but not enough votes for the latter. She said her tally was 1 short for civil unions at the time, but was confident she'd get enough in the end. Hopefully marriage isn't too far off in the rest of the Dutch Kingdom.

  • 39. F_Young  |  August 29, 2016 at 1:34 am

    Mexico's LGBT Community Unites to Combat Conservative Campaign

    LGBT activists have warned that anti-gay marriage advocates promote homophobia and violence in traditionally conservative nation.

    Mexican LGBT activists Sunday held their first-ever national meeting, in the central city of Cuernavaca, to combat a concerted effort by the Catholic church and civil society to repeal same-sex marriage in the country.

    Gay marriage is legal in Mexico, but it is up to each province, or state to recognize or enforce the practice. Catholic activists earlier this month called for a series of nationwide protests against same-sex marriage.

    LGTB activists have said that this campaign and others like it represent a violation of Mexico's secular democracy, and encourage violence and homophobia in this traditionally conservative country.

    Both the church leadership and anti-LGBT activists redoubled their efforts after the unpopular President Enrique Peña Nieto announced last May the signing of a reform initiative which recognizes same-sex couples right to marry.

    Read more: http://www.telesurtv.net/english/news/Mexicos-LGB

  • 40. Sagesse  |  August 29, 2016 at 7:44 am

    Been following the marriage equality referendum debate in Australia with bemused interest and some optimism. If the plebiscite is not passed and does not happen, no matter what the legislators say now, I would think they would quietly just go ahead and pass marriage equality and be done with it. The public support is strong enough now that all the plebiscite would do is give opponents an opportunity to say insulting, incendiary things about LGBT people, but unlike Prop 8, in a losing cause. I have a Pollyanna streak.

    Thoughts?

    Australia Plan for Vote on Gay Marriage Hits Stumbling Block [NYT]
    http://www.nytimes.com/aponline/2016/08/28/world/

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