The Fourth Circuit Court of Appeals yesterday ruled in favor of American Civil Liberties Union client Gavin Grimm, deciding that restroom policies segregating transgender students from their peers and denying transgender student accurate transcripts are unconstitutional and violate Title IX, the federal law prohibiting sex discrimination in education.
 
The decision comes after a five-year long court battle that began when the American Civil Liberties Union and ACLU of Virginia filed a sex discrimination lawsuit against the Gloucester Country School Board for adopting a discriminatory policy requiring Grimm and other transgender students to use “alternative private” restrooms.

 Here are four highlights from the decision today: 

“Grimm’s four years of high school were shaped by his fight to use the restroom that matched his consistent and persistent gender identity. In the face of adults who misgendered him and called him names, he spoke with conviction at school Board meetings. The solution was apparent: allow Grimm to use the boys’ restrooms, as he had been doing without incident. But instead, the Board implemented a policy that … sent him to special bathrooms that might as well have said ‘Gavin’ on the sign. It did so while increasing privacy in the boys’ bathrooms, after which its own deposition witness could not cite a remaining privacy concern. We are left without doubt that the Board acted to protect cisgender boys from Gavin’s mere presence — a special kind of discrimination against a child that he will no doubt carry with him for life.” 

“The proudest moments of the federal judiciary are when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past. …  How shallow a promise of equal protection that would not protect Grim from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward. The district court’s judgment is Affirmed.” 

Judge Wynn issued a second opinion in agreement, called a concurrence, adding: 

“Th[is] is indistinguishable from the sort of separate-but-equal treatment that is anathema under our jurisprudence. No less than the recent historical practice of segregating Black and white restrooms, schools, and other public accommodations, the unequal treatment enabled by the Board’s policy produces a vicious and ineradicable stigma. The result is to deeply and indelibly scar the most vulnerable among us — children who simply wish to be treated as equals at one of the most fraught developmental moments in their lives — by labeling them as unfit for equal participation in our society. And for what gain? The Board has persisted in offering hypothetical and pretextual concerns that have failed to manifest, either in this case or in myriad others like it across our nation. I am left to conclude that the policy instead discriminates against transgender students out of a bare dislike or fear of those ‘others’ who are all too often marginalized in our society for the mere fact that they are different. As such, the policy grossly offends the Constitution’s basic guarantee of equal protection under the law. 

“I see little distinction between the message sent to Black children denied equal treatment in education under the doctrine of ‘separate but equal’ and transgender children relegated to the ‘alternative appropriate private facilit[ies]’ provided for by the Board’s policy. The import is the same: ‘the affirmation that the very being of a people is inferior.’ (Martin Luther King, Jr.)”  

Today’s ruling follows a recent decision from the Supreme Court that it is illegal to fire someone for being LGBTQ. The ACLU argued in the case of Aimee Stephens that federal civil rights laws that prohibit sex discrimination protect LGBTQ people. Today the court once again ruled that Title IX, which also prohibits sex discrimination, applies to transgender students.

While the summer has brought legal wins for the LGBTQ community, the fight is not over. In 2020, over 200 anti-LGBTQ laws were active in state legislatures, including dozens targeting transgender youth. The ACLU and its partners fought many of those and won, and will continue to fight for transgender youth across America.  

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https://twitter.com/chasestrangio/statuses/1298677563741544448

Joshua Block, Senior Staff Attorney, ACLU LGBT & HIV Project

In 2018, we did a simple but radical thing: asked a prosecutor to tell us how their office runs. Through an Arizona Public Records Request, we sought basic public information from the Maricopa County Attorney’s Office (MCAO), like who is prosecuted, which crimes are charged, and how long people are sent to prison. We also sought general office policies governing prosecutions in the county.

This is fairly basic stuff, and the public has a right to know how the largest and most powerful prosecuting agency in Arizona operates. Yet MCAO, like many prosecutors’ offices nationwide, has operated for years as a black box, fighting any attempt at transparency. Because of this entrenched culture of secrecy, MCAO ignored our Public Records Request for almost a year. So we did another radical thing that rarely happens to prosecutors: We sued.

And now we’ve won! In fact, not only were we able to obtain almost all the records we asked for, MCAO is also going to pay us $24,000 for the time and resources it took to force them to comply with the law – and be transparent with their own community.

It didn’t have to be this way. When Maricopa County Attorney Allister Adel was first appointed to the office, she promised to be more transparent than her predecessor Bill Montgomery, stating “if we are doing our job right, we have nothing to hide.” But behind the scenes, throughout the course of the litigation, she was fighting just as hard as Montgomery to hide her operations from the public. This included withholding almost all her office polices, her approach to the death penalty, and even routine data about prosecutions. During one hearing, when pressed on why they would need to keep information about the death penalty secret from the voting public, Adel’s lawyer bluntly argued, “It doesn’t matter if the voter would want to know that.” Doesn’t sound like an office with nothing to hide, does it?

Adel has recently taken some steps toward better transparency, creating a “data dashboard” and posting office policies online. But let’s be clear: these steps would not have been taken had we not sued. Adel’s lawyers fought us tooth and nail to keep this information secret, and only posted it after multiple rulings in our favor.

Moreover, these late-breaking steps do not achieve real transparency; instead they present only the information and data Adel wants the public to see. For example, her data dashboard conflates all drug crimes into a single category, hiding the fact that her office prosecutes simple drug possession more than any other crime. These prosecutions waste taxpayer dollars, fail to increase public safety, and fill our jails and prisons with people who need treatment, not incarceration—particularly with a pandemic raging inside Maricopa detention facilities.

The dashboard also buries horrendous racial disparities coming out of the MCAO. What Adel or her dashboard won’t tell you is that MCAO prosecutors are more likely to dismiss cases—or never file them at all—against white people than people of any other race.

Black and Hispanic people prosecuted by MCAO spend significantly more time incarcerated than white people. Hispanic people are sentenced to significantly longer jail and prison sentences than their white and Black counterparts when prosecuted for simple marijuana possession. At the same time, Black people consistently receive longer prison, jail, and probation sentences than white or Hispanic people for the personal possession of drug paraphernalia. And when ordered to pay a fine, often requested by Adel’s office, Hispanic people pay significantly higher fines than white people.

Just as concerning, the records we obtained reveal that MCAO training material mocked those with mental health conditions,calling them “crazy” and painting them as liars and obstacles to winning a conviction – not as human beings worthy of respect.

These troubling findings – and the racial disparities we detail in a report – would not have been made public without over two years of litigation against MCAO. Yet this is precisely the type of data that the public needs to know to make an informed decision in November when asked to elect the next County Attorney.

The public shouldn’t have to rely on lawsuits to learn what their elected officials are doing. The public deserves nothing less than a County Attorney who will publicly commit to:

·      Posting all office policies and prosecution guidelines online, so the public can see how the office says it operates;
·      Posting statistical data on all prosecutions online, so the public can see how the office actually operates;
·      Posting disaggregated data on race and gender online, so the public can see the disparities that exist in our criminal legal system;
·      Making all of the underlying data available to analysts and the public.

The public deserves these commitments, so in November voters can elect a County Attorney who is doing their job right, with nothing to hide.

The ACLU of Arizona does not endorse or oppose candidates. Learn about the Maricopa County Attorney candidates’ policy positions at smartjusticeaz.org/mcao2020.

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project,
& Jared Keenan, Criminal Justice Staff Attorney, ACLU of Arizona

Tonight, the federal government plans to execute Lezmond Mitchell, a Navajo man, despite the objections of the Navajo Nation and the family members of the victim in the case, and despite a federal statute intended to prevent federal executions of indigenous people over the objections of Native American tribes.    

Mr. Mitchell is the fourth person set for execution this summer alone. By carrying out this execution, Barr’s Justice Department will have executed more people this summer than in the last 57 years combined. Daniel Lee, Wesley Purkey, and Dustin Honken were executed within four days in July, the first federal executions since 2003, greenlit after the Justice Department proposed a new execution protocol last year. The DOJ has scheduled three more executions before October. This record-breaking string of back-to-back executions occurs during a global pandemic.

In all three executions carried out so far, the government sidestepped due process, public health recommendations, and legal precedent in its rush to kill. In flouting these important procedures, the government is treating human lives — and our laws — like they don’t matter. This should raise serious alarm. 

The consequences of the government’s rush to execute will not only affect those on death row. Executions are potential super-spreader events during the COVID-19 pandemic, involving the travel and congregation of hundreds of people from across the country. That the government is choosing to resume federal executions now — at a time when much of our daily lives have ground to a halt — shows an alarming disregard for the lives of all involved, in addition to the inhumanity and the disturbing lawlessness of the capital punishment system. 

COVID-19 swept through prisons, where it spreads rapidly due to crowded, unhygienic conditions. Many facilities, including FCC Terre Haute, where federal executions are carried out, have responded by suspending visitation, even by lawyers. But it seems these public health precautions do not apply when it comes to federal executions, which have been scheduled in rapid succession despite the high risk.

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Participants at an execution include correctional officers, media representatives, spiritual advisors, and victims’ family members. Many may feel they have no choice. 

For example, Purkey’s spiritual advisor Reverend Seigen Hartkemeyer, who is 68 and immunocompromised, felt religiously obligated to attend his execution despite the risks he faced.

“I feel substantial pressure to abandon my religious commitments to [Purkey],” he said in a court declaration in early July before Mr. Purkey’s execution. “I’m being asked to make an impossible decision — violate my religious beliefs or risk my health and life.” 

Earlene Peterson, the grandmother and mother of two of Lee’s victims, raised similar concerns. Although Peterson, who is a Trump supporter, had long opposed Lee’s execution, she planned to attend if it was to go forward. She asked President Trump to stop or at least delay the execution until the family could attend safely, but her request was ignored.

These fears are not unfounded. At the time of the executions, the Terre-Haute prison was in the midst of its own outbreak. In fact, the Bureau of Prisons confirmed that a correctional officer at Terre-Haute tested positive for COVID-19 after participating in the preparation of the July executions. 

Even without the threat of COVID-19, these unlawful executions should never have taken place. The federal government gave these men less legal process and protection than any state prisoner would ever receive. 

For two of the men, the federal government carried out the executions on different days than those set by their death warrants under an unprecedented and illegal instant notice theory. Before any execution, federal law requires the government to issue a death warrant that delineates a specific date on which the execution must take place. Under its own rules, the government must then publicly disclose the execution date at least 20 days in advance. 

Lee and Purkey, however, were executed hours after their death warrants expired. Instead of issuing a new execution date at least 20 days out, BOP officials wrote letters in the middle of the night simply declaring that the new execution date was that same day, in effect, that instant. No state or prior federal administration has ever attempted this kind of same day, instant notice.  

Procedures such as death warrants and the customary 20-day window of notice of execution dates were put in place for a reason: taking a human life is serious. The death warrant and customary notice period allow any outstanding legal issues to be addressed and resolved. In other words, these rules allow for due process. Lee and Purkey were not afforded this basic right.

The consequences could have meant the difference between life and death. For example, the Eighth Amendment prohibits the execution of those who are mentally unfit, such as Purkey, whose Alzheimer’s and schizophrenia were so severe that he no longer understood why he was being executed. At the time of his execution, a brain scan supporting these claims still awaited judicial review. Purkey was executed before any court had the opportunity to review this evidence, with his appeal pending. 

This raw abuse of federal power to end human life comes at a time when most of the nation is moving away from capital punishment. A Gallup poll conducted last year found that 60 percent of Americans today prefer life imprisonment over the death penalty. Since the last federal execution in 2003, 10 states have formally abolished the death penalty, including Colorado, New Hampshire, and Washington state in recent years. Numerous other states have issued moratoriums. 

Across the country, courts are issuing fewer death sentences and executions are rapidly decreasing. These steps toward progress are more aligned with the will of the people than that of the Justice Department. Even supporters of capital punishment should be ashamed of how the government ran roughshod over the Constitution and decency to carry out these executions.  

The death penalty is a broken system from start to finish, global pandemic aside. We’ve long known that death sentences have less to do with the severity of the crime than with race, access to quality counsel, and the state or even county in which the crimes were committed. Further, not everybody who is sentenced to death is guilty. Over the last 44 years, 170 people sentenced to death have been exonerated. But the legal system doesn’t always realize its mistake in time. Troy Davis and Cameron Todd Willingham are among those executed despite their almost certain innocence.

The death penalty dehumanizes all of us, and renders the racism and errors of the criminal legal system permanent. The federal government’s eagerness to rush through this very serious legal matter is grotesque — as is its willingness to expose hundreds of individuals to a serious and potentially deadly illness in the process. There’s never been a better time for America to end this failed experiment.

Cassandra Stubbs, Director Capital Punishment Project, ACLU