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Challenging the Transgender Ban

The Trump administration's recent rollback of Obama-era sexual orientation and transgender policies has led to litigation claiming violations of due process and equal protection rights.

By Anjali Patel

Monday, August 14, 2017

Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

The complaint alleges Trump failed to consult with the Joint Chiefs of Staff and the Department of Defense before "the White House [allowed] a plan to end the active service of transgender servicemembers to be transmitted to the Department of Defense for implementation."

The complaint argues that the ban on transgender servicemembers:

Violates the equal protection component of the Fifth Amendment's due process clause, "lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." Violates the Fifth Amendment's due process clause by taking "arbitrary and capricious" action to reverse the 2016 policy allowing transgender people to openly serve. The 2016 policy created a protected interest in being able to openly serve as transgender servicemembers, and the reversal of that policy deprived the plaintiffs of those interests without due process of law, and impermissibly burdened their fundamental rights to autonomy and privacy, the complaint said.

Rescinds the rights, benefits, and privileges promised to the plaintiffs who relied on the 2016 policy, notified their commanding officers that they were transgender, and received ongoing support for their continued service as openly transgender. However, now that they have already identified themselves as transgender, they no longer have "the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service." Since coming out, the plaintiffs have served "honorably and successfully" and their transgender status "has not had any detrimental effect on their ability to serve or fulfill their duties," the complaint states. Consequently, the U.S. government should be prevented from "rescinding the rights, benefits, and protections promised to Plaintiffs."

As relief for the ban, the plaintiffs said the court should find the president's directive unconstitutional and issue a preliminary injunction, along with a permanent injunction, prohibiting the categorical exclusion of transgender people from military service.

Sexual orientation

On the same day as the president's tweets -- July 26 -- the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114 , No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

Regardless of the 2d Circuit's ruling, ultimately this will be addressed either through legislation or the Supreme Court, she added.

Right now, the EEOC is aligned with the 7th Circuit, while the DOJ is aligned with the 11th Circuit.

"The EEOC is also going to trial as a plaintiff in a 3d Circuit sexual orientation case, which will bring another court into the issue," Farmer said.

During a Town Hall conversation at the 32nd Annual FDR Training, the EEOC's Robbie Dix, associate director of the Appellate Review Program, said the EEOC has been clear that Title VII prohibits agencies from discriminating against or harassing employees based on their sexual orientation and gender identity.

"Agencies should process these cases using 1614 procedures," Dix said. "If they decide to reject these cases relying on the DOJ stance, we will send them back to be processed in a New York second."

Farmer warned, however, that once Trump's nominees for the EEOC are confirmed, new leadership could take a different position than the current EEOC.

If the EEOC's position remains the same, the Supreme Court could be in the "rare -- although not unheard of -- position" of hearing agencies in the same administration arguing as amici for opposing parties, she noted.

However, "it's hard to imagine that the administration would not try to get the EEOC and DOJ aligned on this issue -- which involves the interpretation of a key federal statute -- before going to the Supreme Court," Farmer said.

Sex stereotyping

Agencies also should "keep in mind that there has been a line of cases, for both federal and nonfederal employees, finding that sex stereotyping is sex discrimination protected by Title VII" under the Supreme Court's decision in Price Waterhouse v. Hopkins, 89 FEOR 9001 (U.S. 1989), Farmer said.

If the facts allow, usually complainants allege sex stereotyping instead of sexual orientation discrimination, such as "because I am gay, I don't fit the masculine stereotypes, and therefore I was discriminated against under Title VII," she said.

However, these cases can get somewhat "messy" because courts must make highly subjective calls on whether the person was perceived as "effeminate enough or butch enough" to fall within sex stereotyping, she added.

Additionally, not every case will have facts fitting a sex stereotyping claim. And "from a judicial perspective, it's far cleaner to have a firm line than a rule that asks how much sex stereotyping do you need to have," Farmer explained.

That said, if the Supreme Court ultimately includes sexual orientation under Title VII, plaintiffs would not have to try fitting the facts into a sex stereotyping framework, she added.

Although many believe including sexual orientation under Title VII expands the statute, "as a practical matter, it is not that much of an expansion because litigants can plead enough facts to be recognized as a sex stereotyping case," she said. However, the standard of proof would change and require showing sexual orientation, rather than sex stereotyping, she added.

Anjali Patel is cyberFEDS Legal Editor Washington Bureau. Send questions or comments about this story to hreletters@lrp.com.

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Challenging the Transgender Ban - Human Resource Executive Online

Special Counsel Robert Mueller has opened a grand jury in Washington, D.C., for his investigation into Russian election meddling and possible coordination by Trump campaign associates, according to multiple news reports. We decided to review the significance of this move, so we asked legal experts for their views on several questions related to grand juries.

What is a grand jury and what is its job?

The grand jury traces its roots to the Fifth Amendment to the U.S. Constitution. That provision says that "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."

When a court impanels a federal grand jury, jurors are tasked with figuring out whether enough evidence exists to formally accuse someone of a felony. Unlike a trial jury, a grand jury does not play a role in determining guilt or punishment. Rather, this panel of 16 to 23 citizens serves a gatekeeping function for issuing indictments.

In modern practice, the grand jury is a potent investigative tool for prosecutors, said Andrew D. Leipold, a law professor at the University of Illinois College of Law.

"People dont generally have a duty to cooperate with law enforcement," Leipold said. "So if the police or FBI questions someone, typically that person is not required to answer. And generally unless the police have a warrant, they cant make a person produce documents."

"But a grand jury can do that," he said.

In Muellers case, he could not conduct an effective investigation without a grand jury, said Ric Simmons, a law professor at Ohio State University.

"The prosecutor does not have subpoena power on his or her own," he said. "He or she needs the grand jury to issue subpoenas for documents and to compel testimony."

To issue an indictment, a grand jury needs to believe a federal crime was probably committed. This threshold, known as the "probable cause" standard, is a far easier hurdle to clear than the proof "beyond a reasonable doubt" needed to convict. Grand juries are also one-sided ordeals, where neither defendants nor their lawyers have the right to appear before jurors to refute incriminating evidence.

For these reasons, lawyers have a saying that any halfway decent prosecutor should be able to indict a ham sandwich. But its important to emphasize that someone who is indicted has not yet been found guilty, and may never be.

How has Special Counsel Robert Mueller used grand juries so far?

Muellers appointment in May as special counsel granted him fairly broad jurisdiction.

The Justice Department authorized him to lead an investigation into Russias interference in the 2016 election, as well as any links or coordination between the Russian government and Trump campaign associates, plus "any matters that arose or may arise directly from the investigation."

Grand juries are supposed to operate in secrecy, but because they issue subpoenas and compel testimony, their work sometimes becomes public. Our best understanding of how Mueller has used grand juries is based primarily on anonymously sourced news reports.

In June, Reuters reported that Mueller was taking over a grand jury investigation in Virginia that had been looking into former national security adviser Michael Flynn.

The investigation got fresh attention when the Wall Street Journal reported in August that a new grand jury had convened weeks earlier in Washington, D.C., to focus on his investigation.

That same day, Reuters reported the new grand jury had issued subpoenas related to a controversial June 2016 meeting at Trump Tower between Donald Trump Jr. and a Russian lawyer, and several others (CNN also reported on the subpoenas). The meeting was predicated on the promise that a "Russian government attorney" would deliver damaging information to Trump Jr. about his fathers Democratic opponent Hillary Clinton.

Why would Mueller open up a new grand jury?

While Muellers precise rationale for seeking more than one grand jury is not publicly known, legal experts told us its a fairly unsurprising move for a special prosecutor because it carries several advantages.

Grand juries typically divide their attention among multiple cases. So its possible Mueller believes he can operate more smoothly with a panel of jurors focused exclusively on whats potentially a large volume of information.

"In special investigations, rather than ordinary criminal cases, it is not uncommon to impanel a special grand jury," said Joshua Dressler, a law professor at Ohio State University. "This way, the jurors will become increasingly knowledgeable about the matters at issue, and they can focus on just one matter."

Theres a number of other theories for Muellers move.

Some believe his grand jury was meant to make it easier to broaden the scope of his investigation beyond Flynn.Others say a Washington-based jury would be more sympathetic. Still others say Mueller simply wanted a grand jury closer to his teams Washington office.

"Since the proceedings are secret, it is very hard to know which (if any) of these are correct," said Jed Shugerman, a professor at Fordham Law School.

Does the new grand jury mean an indictment is near?

Legal experts we spoke to fell into two camps on whether the existence of Muellers grand jury tells us anything about the likelihood of any future indictments.

Some experts think a grand jury by itself tells us nothing. Others said it increases the chances of indictments issuing at some future point, though none believed they were imminent.

Simmons said while a grand jury is a prerequisite for a future indictment, its also a required step in the early stages of an investigation.

"It simply means that Mueller did not believe the case was frivolous and decided a real investigation was appropriate," he said. "Thats something we all pretty much assumed already."

Leipold called the grand jurys impaneling "important but unremarkable" in the grand scheme of the investigation.

"I dont find any clues in its presence as to whether or not there will be an indictment or whether or not its imminent," he said. "I can imagine a world in which Mueller says, Im not inclined to seek an indictment, or, one in which he seeks lots of indictments."

Others viewed the new grand jury as a more meaningful development, but cautioned against jumping to any premature conclusions about its ultimate significance.

Jessica Levinson, a professor at Loyola Law School in Los Angeles, said that because of the relatively low probable cause standard -- recall the quip about indicting a ham sandwich -- she believes its more likely than not that at least one criminal indictment will issue.

"But none of this is a done deal," she added.

So what to make of the frenzied speculation in the Twitterverse about an indictment being issued any day now?

"I think people have overreacted to this news by thinking an indictment is imminent," Shugerman said.

Perhaps the only clue the grand jury gives as to Muellers timeline is that were in for a lengthy investigation, said Mark Godsey, a law professor at the University of Cincinnati and author of Blind Injustice, about the inner-workings of federal prosecutors' offices.

"I dont think it says much about timing, other than it suggests there is a lot of work to do, and that can impact how long the investigation lasts," he said.

Share the Facts

2017-08-10 15:47:15 UTC

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Correct about grand juries

"You cant read that (the impaneling of a grand jury necessarily) means that indictments are going to follow."

Adam Schiff

U.S. Rep, D-Calif.

CNN

Sunday, August 6, 2017

2017-08-06

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Does Mueller's grand jury mean an indictment is imminent? - PolitiFact

A group of City Council members wants to add some money for community service programs to Mayor Jean Stotherts proposed 2018 budget.

Theyve proposed four amendments to add money to such programs, plus a fifth amendment that would beef up the city clerks budget after the council approved some increases to the offices salary ranges.

The amendments would make less than $100,000 worth of changes to a $900 million city budget.

If the amendments are approved, the following programs budgets would increase:

The Metropolitan Area Planning Agency would receive an additional $10,000, for a total of $20,000.

MAPA executive director Greg Youell asked the council to increase its funding to $40,000.

Council President Ben Gray proposed the amendment.

The Police Athletics for Community Engagement would receive an additional $10,000, under an amendment proposed by Gray, Pete Festersen and Vinny Palermo.

Stothert had proposed funding of $25,000, up from $20,000 in 2017.

The ReConnect program, which provides job training and other services to young people transitioning from prison, would receive another $10,000 for a total of $55,000, under an amendment from Gray and Council Vice President Chris Jerram.

Gray and Jerram also want to add $20,000 for the Heartland Workforce Solutions job training program.

Council members had asked for about $1 million in funding; Stothert proposed $500,000, up from $440,000 in 2017.

All of the money would be moved from the mayors proposed allocation to citys reserve funds.

The council is scheduled to vote on the budget Aug. 22. Tuesday is the deadline for council members to submit amendments.

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Omaha City Council members look to boost funding for community service programs in Stothert's proposed budget - Omaha World-Herald

Benchmark Capital may have just given another Uber investor some legal ammo by filing a bombshell complaint against the company and its former CEO Travis Kalanick. Central to Benchmarks allegations that Kalanick committed fraud and breach of fiduciary duty is Alphabets self-driving lawsuit against Uber.

According to the complaint, Kalanick did not disclose to the board what he knew about Alphabets allegations of trade secret misappropriation before the board signed off on Ubers acquisition of self-driving startup Otto.

In sum, the Waymo lawsuit presents significant legal, financial, and reputational risks to Uber risks that could have been reduced or avoided if Kalanick had disclosed crucial facts about his own apparent knowledge at the time of the Otto acquisition, the complaint reads. Instead, as noted above, Kalanick repeatedly emphasized to [Bill] Gurley and others at the time that Ubers acquisition of Otto and employment of Levandowski who appears to have taken information from Waymo would be transformative for Ubers business.

The timing of Benchmarks complaint may prove to be material for Alphabet and its case as the company is scheduled to depose Benchmark partner and former Uber board member Bill Gurley at the end of the month. In deposing Gurley, as well as fellow board member Arianna Huffington, Alphabet is attempting to find out what the board knew about former Uber engineer Anthony Levandowskis alleged theft of important files.

Alphabet is claiming Levandowski stole 14,000 files from Alphabet before starting Otto, which Uber later acquired.

The complaint lays out in part what Gurley and the board knew and when, so it stands to reason that Alphabet will use it in its questioning of Gurley. The complaint further alleges that Kalanick tried to block the termination of Levandowski before he left, even after Alphabet sued the company. Alphabet has previously argued that Levandowskis continued employment at Uber signaled the company was okay with his alleged infractions.

Benchmarks complaint also brings up a document that has become a major point of contention in the Alphabet suit.

Before Uber acquired Otto, the company commissioned security firm Stroz Friedberg to conduct a due diligence report to assess, among other things, whether any of the employees took files from Alphabet. Benchmark claims Kalanick did not disclose the findings of that report to the board or partner and former company board member Bill Gurley.

Alphabet has asked the court to compel Uber to produce the Stroz document as part of discovery. Uber has refused. Since Levandowski asserted his Fifth Amendment rights in the case, his as well as Ubers attorneys have argued that the document is privileged and should not be turned over to Alphabet.

The board has since seen the document and its clear Benchmark, at least, thinks it would have made a material difference on some of its decisions. Specifically, the complaint is seeking to reverse a 2016 decision that allowed Kalanick to create three additional seats on the board.

Upon information and belief, if the contents of Strozs interim findings and the Stroz Report had been disclosed to Benchmark at the time, they would have had a material impact on Benchmarks decision to authorize the creation of the three new Board seats and grant control over them to Kalanick, the complaint reads.

The two companies expect to hash out whether Uber has to produce the Stroz report in court again tomorrow. Its likely Alphabet will use Benchmarks complaint to bolster its argument to obtain the document.

As we have long said, there is significant and direct evidence that Uber is using stolen Waymo trade secrets, a Waymo spokesperson said in a statement. There is also significant evidence that Uber leadership knew about Levandowski's misconduct and, rather than do the right thing, tried to conceal it.

Uber declined to comment.

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Alphabet could use Benchmark's lawsuit against Uber in its own lawsuit against Uber - Recode

(Jenny Starrs/The Washington Post)

Five active-duty service members sued President Trump Wednesday over his intentions to ban transgender personnel from serving in the military.

The directive to reinstate a ban on open service by transgender people violates both the Equal Protection component of the Fifth Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution, states the suit filed in U.S. District Court in Washington by five anonymous Jane Does.

They are represented by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD).

Trump announced in a series of tweets on July 26 that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.

[Trump announces ban on transgender service members ]

(Jenny Starrs/The Washington Post)

The military has not issued a policy on how that directive would be carried out. The suit states that upon information and belief, the White House turned [Trumps] decision into official guidance, approved by the White House counsels office, to be communicated to the Department of Defense.

Since the Obama administration lifted the ban on transgender troops in June 2016, hundreds of service members have come out and are serving openly. A Rand Corp. study commissioned by the Pentagon last year estimates that there are about 11,000 transgender troops in the reserves and active-duty military.

All five of the plaintiffs said they relied on the 2016 policy change when they notified commanding officers they were transgender. Besides the constitutional challenges, they ask the court to find Trumps intentions would be a violation of the promises government has made to members of the military.

Because they identified themselves as transgender in reliance on defendants earlier promise, plaintiffs have lost the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service, the suit states.

The suit is expected to be the first of several filed once the ban is officially issued.

The plaintiffs are a Coast Guard member who has written a prospective letter of resignation; an Air Force active-duty service member of nearly 20 years who served twice in Iraq; and three Army soldiers.

In a news release, one plaintiff says: My experience has been positive and I am prouder than ever to continue to serve. I am married and have three children, and the military has been my life. But now, Im worried about my familys future.

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Active-duty military members sue Trump over transgender ban - Washington Post