Analyzing the “Sex” in Sexual Orientation Discrimination

Maria Castro, Associate Member, University of Cincinnati Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against their employees on the basis of race, color, religion, sex, or national origin.[1] Circuit courts are split over whether discrimination on the basis of sexual orientation is included under Title VII’s prohibition against sex discrimination.[2] Historically, courts did not recognize sexual orientation discrimination as a cognizable action under Title VII.[3] However, in 1989, the Supreme Court in Price Waterhouse held gender-stereotyping claims were a form of sex discrimination.[4] Some federal courts have allowed LGBT individuals to bring sex discrimination claims based on prohibited gender stereotyping.[5] In March 2017, the Eleventh Circuit reaffirmed its precedent that sexual orientation is not a cognizable action on its own.[6] However, in April 2017, the Seventh Circuit became the first circuit to hold sexual orientation discrimination was prohibited sex discrimination under Title VII.[7]

In Zarda v. Altitude Express, the Second Circuit upheld precedent stating that sexual orientation discrimination was not protected, but reheard the case en banc to consider overturning its precedent.[8] During the en banc hearing, the EEOC and the DOJ filed opposing amicus briefs. The EEOC argued sexual orientation is a prohibited form of sex discrimination, whereas the DOJ argued that it is not. Given the circuit split and the differing federal agency opinions on the same issue, it is possible the Supreme Court will grant certiorari to hear this issue in Evans. The Second Circuit should find sexual orientation, on its own, is not a protected class under Title VII because it is not listed in the statute, it was not intended to be included in the statute, and it is ultimately the legislature’s role to amend the statute to include sexual orientation as a protected class.

The Eleventh Circuit: Title VII Does Not Prohibit Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, the Eleventh Circuit held sexual orientation discrimination is not a cognizable claim under Title VII.[9] The employee in Evans argued that the Supreme Court supported a cause of action for sexual orientation discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228.[10] In support of her gender-nonconformity claim, the employee argued sexual orientation is a gender non-conformity issue because “discrimination based on gender stereotypes is a broad claim that encompasses more than just her appearance, but also provides for suits based on other stereotypes, such as family structure.”[11] However, the Eleventh Circuit disagreed, recognizing that Price Waterhouse supported a cause of action for gender non-conformity, but that a gender non-conformity claim was not the same as a sexual orientation claim.[12]

All persons, whether LGBT or not, are protected from discrimination based on gender stereotype.[13] Price Waterhouse specifically allowed for gender-nonconformity claims to be brought under sex discrimination claims; however, it did not address sexual orientation claims.[14] An LGBT individual might also deviate from gender stereotypes, but not necessarily.[15] A lesbian woman, just like a straight woman, may bring a gender-nonconformity claim if it is found she was fired for wearing a “male haircut,” and therefore not conforming to her employer’s gender expectations of what a woman should look like.[16] However, just as a straight woman cannot recover under Title VII if she is fired for being heterosexual, a lesbian woman cannot recover under Title VII if she is fired for being a lesbian.[17] Therefore, gender non-conformity and sexual orientation are two legally distinct concepts.[18] As a result, Price Waterhouse does not support a cause of action for sexual orientation claims simply because it supports a cause of action for gender-nonconformity claims.

The Seventh Circuit: Title VII Prohibits Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held discrimination on the basis of sexual orientation is a form of sex discrimination.[19] In making this determination, the Seventh Circuit analyzed Price Waterhouse and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75.[20] The employee in Hively offered two approaches to support her claim that sex discrimination includes sexual orientation discrimination.[21]

Under the comparative theory method, the court examined whether the outcome for the employee would have differed if the employee’s sex changed.[22] The employee was a woman married to a woman, so the court looked at whether the outcome would have differed if she had been a man married to a woman. The court found under this approach, the employer disadvantaged her “because she is a woman.”[23] Furthermore, the court found the line between a gender nonconformity claim and a sexual orientation claim does not exist.[24] As a woman, the employer expected the employee to be married to a man, not to another woman. According to the Seventh Circuit, sexual orientation discrimination is a form of gender nonconformity discrimination because “it is based on assumptions about the proper behavior for someone of a given sex.”[25] It is impossible to discriminate against a person based on their sexual orientation without taking into account their sex.[26]

Under the association approach, the Seventh Circuit relied on Loving v. Virginia[27] to find that employees have a right to associate intimately with a person of the same sex.[28] The court found that “it is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[29] For example, the Second Circuit found an employer discriminated on the basis of race when it fired a white employee because he was married to a black woman.[30] The court found that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Therefore, the court in Hively found that when an employer fires an employee for her association with another woman, the employee suffers discrimination because of the employee’s own sex.[31]

The Second Circuit Should Follow Precedent

Congress did not include sexual orientation discrimination as a protected class within Title VII. The text of Title VII specifies that an employer cannot discriminate based on “race, color, religion, sex, or national origin.” Sexual orientation and sex are not one in the same. Sex refers to one’s biological status and is typically categorized as male, female, or intersex.[32] Sexual orientation refers to the sex of those whom one is sexually and romantically attracted.[33] Congress has introduced and failed to pass many bills that would have included sexual orientation discrimination as a protected class.[34] There are a variety of reasons to explain why Congress did not pass any of these bills. It could possibly be indicative of Congressional intent to exclude sexual orientation as a protected class, or it could be indicative of Congressional belief that sexual orientation discrimination is already included under sex discrimination. It could also be due to disagreement about the terminology among members of Congress.

Regardless of the reason that Congress has not yet adopted a bill amending Title VII to include sexual orientation discrimination as a protected class, the main point is that Congress is the appropriate branch to determine this issue. Congress is the branch that created Title VII, and the only branch that can amend it. It cannot be argued that in 1964, Congress intended to include sexual orientation discrimination within Title VII protections. When Congress included “sex” discrimination as a protected class, it intended to prohibit employers from discriminating against employee’s based on their sex, not based on their sexual orientation. Sex and sexual orientation are two separate concepts.

There are many sound policy arguments to support including sexual orientation as a protected class under Title VII. LGBT individuals are treated as second-class citizens when employers can fire them simply for being LGBT. In addition, it is a bizarre notion that an employee may legally get married on a Saturday, and then also legally be fired for it on a Monday.[35] However, when the Supreme Court recognized same-sex marriage in Obergefell, it dealt with state action, not private action.[36] State action is subject to constitutional limits; private action is regulated by statute.[37] Title VII is that statute at issue here, not the Due Process Clause or the Equal Protection Clause. Title VII does not include sexual orientation as a protected class. Therefore, the policy arguments that support protecting LGBT individuals from employment discrimination should be directed towards Congress, not the courts.


The Second Circuit should uphold precedent and find sexual orientation discrimination is not a cognizable action under Title VII and the Supreme Court should rule accordingly if it hears this issue. In order to make sexual orientation a protected class under Title VII, Congress should amend Title VII. Congress is the appropriate branch to make this change in the law. However, attorneys should continue to keep in mind that LGBT clients might be able to make valid gender-nonconformity claims, under the appropriate set of facts.

[1] 42 U.S.C. § 2000e-2.

[2] Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339 (7th Cir. 2017); Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017); Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).

[3] Hively, 853 F.3d at 340.

[4] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[5] Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017).

[6] Evans, 850 F.3d at 1255.

[7] Hively, 853 F.3d at 340.

[8] Sexual Orientation and Gender Identity Discrimination Under Title VII, Practical Law Practice Note w-007-8106

[9] 850 F.3d at 1255.

[10] Id. at 1256.

[11] Id. at 1254.

[12] Id.

[13] Id.

[14] Id. at 1256.

[15] Id. at 1258 (Judge William Pryor, concurring).

[16] Id.

[17] Id.

[18] Id.

[19] 853 F.3d at 341

[20] Id. at 342.

[21] Id. at 345.

[22] Id.

[23] Id.

[24] Id. at 346.

[25] Id.

[26] Id.

[27] 388 U.S. 1.

[28] Hively, 853 F.3d at 345.

[29] Id.

[30] Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008).

[31] Hively, 853 F.3d at 349.

[32] Resolution on gender and sexual orientation diversity in children and adolescents in schools. (2015). American Psychological Association & National Association of School Psychologists. Retrieved from ntation-diversity.aspx

[33] Id.

[34] Evans, 850 F.3d at 1261 (Judge William Pryor, concurring).

[35] Hively, 853 F.3d at 342.

[36] Id. at 372 (Judge Sykes, dissenting).

[37] Id.


The FMLA and Retaliation

Alexander Foxx, Associate Member, University of Cincinnati Law Review


The Family Medical Leave Act (“FMLA” or “the Act”) entitles employees to twelve weeks of unpaid leave to address their personal medical issues or medical issues of immediate family members.[1] The FMLA prohibits employers from interfering with an employee’s right to take this leave or from retaliating against the employee for taking this leave.[2] What constitutes “retaliation” has been the subject of disagreement among several circuit courts. Specifically, the timeframe for when retaliation may occur is at issue. The Eleventh Circuit used an employee-friendly view of retaliation because it provided a longer timeframe for when retaliation may occur.[3] The Eighth Circuit’s view is more employer-friendly because it narrowed the timeframe for retaliation claims.[4] The Eleventh Circuit’s view better fulfills the intent of the Family Medical Leave Act and fits well within the boundary of legal interpretation.

The Family Medical Leave Act and Judicial Background

The FMLA was passed in 1993 as a response to changing family norms and a recognition that employers were not adequately addressing these norms.[5] Specifically, the FMLA states that its purpose is to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity” and “entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”[6] The FMLA entitled employees to 12 weeks of unpaid medical leave and mandated job security.[7]

The FMLA prohibited retaliation against an employee who exercised his or her rights under the Act—namely, an employer could not fire an employee for taking FMLA approved medical leave.[8] However, proving retaliation is difficult due to a dearth of non-circumstantial evidence.[9] Non-circumstantial evidence is evidence which can be directly supported by fact and does not require inference on the part of a judge or a jury.

To accommodate plaintiffs’ difficulty in establishing a case against an employer based on circumstantial evidence, courts adopted the prima facie Title VII framework from the Supreme Court ruling in McDonnell Douglas Corp. v. Green.[10],[11] The employee must establish “(1) [the employee] engaged in statutorily protected activity, (2) [the employee] suffered an adverse employment decision, and (3) the decision was causally related to the protected activity.” [12] If these elements were met, the burden would shift to employer to show the employee was fired for a legitimate business purpose.[13] Finally, if the employer met its burden, the employee must demonstrate the legitimate purpose was pretext for an illicit action.[14]

The circuit splits centers around the third element of the McDonnell Douglas framework. Both the Eleventh and Eighth circuits agree if an employee is fired soon after the event which serves as a benchmark for retaliation (the “Event”), this is an indication of a causal connection (the courts refer to this nearness to the Event as “temporal proximity”[15]).[16]

The Issue

The primary issue is determining the date for the temporal proximity element. Some cases have found that the day the FMLA leave begins is the proper date, while others have found that the day the FMLA leave ends is the proper date.[17] If the end-date is used, the employee’s firing will likely occur much closer to the Event and temporal proximity will be easier to show, strengthening the employee’s case. If the begin-date is used, the employee will likely be terminated far removed from the Event and will have trouble proving causation and establishing a case. The Eleventh Circuit favors the end-date[18]; the Eighth Circuit favors the begin-date.[19]

In Jones v. Gulf Coat Health Care, the Eleventh Circuit stated “temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”[20] The court reasoned that to hold otherwise would violate the policy of the FMLA and unduly disadvantage employees who must take the full 12 week amount.[21] The court noted if an employee were to take the full amount of FMLA leave, he or she would be well removed from the begin-date at the time of termination and temporal proximity would not be present, even if there was a clear causal relationship.[22] The Eleventh Circuit also noted that the Fifth and Sixth Circuits had issued similar decisions.[23] The Eleventh Circuit concluded that temporal proximity should be determined from the end-date.

The Eighth Circuit reached a contrary conclusion in Sisk v. Picture People. The court stated  “this court looks to the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the date it ended.”[24] The Court appeared reluctant to allow retaliation to be identified more than two months after the employee begins their leave.[25] Such an extended lapse of time between when retaliation may occur and when an employee exits the work place (nearly three months, if the full leave is used) diminishes the causal connection between the potential retaliation and the Event.[26] The court stated, “more than two months is too long to support a finding of causation without something more,” indicating an unwillingness to allow a broad view of temporal proximity that may further expose employers to liability.[27] Therefore, the Eighth Circuit ruled temporal proximity will be determined by the begin-date of the FMLA leave.[28]

The Eleventh Circuit Approach is Correct

The Eleventh Circuit correctly defined the end-date as the date by which to determine temporal proximity. To rule otherwise would go against the purpose of the FMLA and provide a loophole through which employers could retaliate against employees without consequence.

The FMLA was established to “entitle employees to take reasonable leave for medical reasons.”[29] Congress wanted to ensure that employees could not be fired for missing work for twelve weeks due to a medical necessity. Congress wished to ensure that an absence due to a medical emergency was not deemed improper until after twelve weeks. To begin the measure of temporal proximity from the beginning of the leave would allow employers to impose absence consequences before the twelve week entitled leave ends. This directly violates the spirit of the Act, if not its verbiage. It is not a legally proper interpretation to allow the employee to be penalized at the initiation of his or her leave—the Act was designed to prevent this very thing. For this reason, the Eleventh Circuit’s argument is legally proper.

Opponents may argue that because the FMLA does not specifically provide a timeline for retaliation, courts should be confined to the plain language of the FMLA. This ignores that all the FMLA provides is “retaliation.”[30] To retaliate is defined as “to get revenge.”[31] The definition section of the FMLA does not define “retaliate”—this dictionary definition is what courts may look to in determining retaliation.  The courts therefore appear to be granted broad discretion in determining when an employer has acted in a retaliatory manner. This discretion has manifested itself in using the McDonnell Douglas framework. This demonstrates that the determination of what is “retaliatory” is defined by common-law—not the statute. Therefore, the Eleventh Circuit is well within its propriety in interpreting temporal proximity broadly.

Further, if the begin-date is used as the measure for temporal proximity, employers will have unreasonably strong cases against employees who take the full leave amount. The begin-date measurement would allow employers to be nearly three months removed from the Event their retaliation would be measured against. Essentially, the begin-date approach would allow many employers to claim that no retaliation occurred because too much time had elapsed. This ignores the fact that the employer could have planned for termination from the first day of FMLA leave, but simply delayed the action until the employee returned from leave. Waiting and then terminating an employee for exercising a right fits the definition of “retaliation” perfectly. For this reason, the Eighth Circuit’s use of the begin-date approach is improper and the Eleventh Circuit’s end-date approach is correct.

Consider the following example. Employee A suffers a stroke and informs Employer B that he will need to take FMLA leave for 12 weeks to recover. B grants the leave, but concludes that 12 weeks is too long an absence for any worker to take from work and remain employed—he decides as soon as he grants A’s FMLA leave that he will terminate A on A’s return to work. 12 weeks later, A returns to work fully recovered and ready to resume his job duties. He is promptly fired by B.

Under the begin-date approach, Employer B’s case would be strengthened because he waited until the FMLA leave had expired before he fired Employee A. In a sense, Employee A was punished for suffering a stroke—the exact policy the FMLA was initiated to prevent.

Finally, the end-date approach does not ensure the employers liability—it only allows the establishment of a prima facie case easier for the employee. The employer has a significant opportunity to defeat the claim following the prima facie case. Indeed, if the employer can demonstrate that the employer was terminated for an appropriate, non-FMLA related matter, the employer will prevail. The McDonnell Douglas framework and temporal proximity do not determine a case—they only determine where the burden of evidence lies. To grant employers an even stronger hand is unnecessary.


Courts should follow the Eleventh Circuit’s end-date approach in determining temporal proximity for the purposes of the FMLA. To do otherwise violates the spirit of the FMLA and provides employers a cover for illicit termination of employees. The Eleventh Circuit’s end-date approach to temporal proximity under the FMLA is the proper one.

[1]FMLA (Family & Medical Leave), United States Department of Labor, (last visited Sep 22, 2017).

[2] Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1267 (11th Cir. 2017)

[3] Jones at 1272

[4] Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)

[5] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[6] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[7] FMLA (Family & Medical Leave), United States Department of Labor, (last visited Sep 22, 2017).

[8] 29 C.F.R. § 825.220(c)

[9] See Jones at 1270.

[10] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)

[11] Using this framework in the FMLA has its critiques. See Chelsey Jonason, Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave, However, even these critiques acknowledge the wide use of the test in the courts. See id. at 439.

[12] Jones at 1271 (quoting Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010))

[13] Id. at 1271

[14] Id.

[15] Jones at 1272; Sisk at 900.

[16] Id.

[17] See, e.g., Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1272 (11th Cir. 2017); Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)

[18] Jones at 1272

[19] Sisk at 900

[20] Jones at 1272.

[21] Id.

[22] Id. at 1273.

[23] Id.

[24] Sisk at 900.

[25] Id. at 901.

[26] See, id..

[27] Id.

[28] Id. at 900.

[29] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[30] 29 C.F.R. § 825.220(c)

[31] Retaliate, Merriam-Webster Online Dictionary,


Next on the Stand, Alexa: The Constitutionality of Using Smart Devices in Court

John Bernans, Associate Member, University of Cincinnati Law Review

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] In recent years, “smart technology” and advances in artificial intelligence have cast shadows on the balance between privacy and security. An Arkansas murder investigation recently brought this issue to the forefront. James Andrew Bates was accused of killing his friend Victor Collins.[2] Bates invited Collins over for a night of football and drinking and found Collins dead the following morning. Prosecutors requested the recordings from Bates’ “Amazon Echo.” The smart device has the ability to order goods, play music, and send messages by responding to its owner’s verbal commands. Investigators believed evidence from what had unfolded that night could be found within the recorded files of the device. This case is the first of its kind. Looking at Fourth Amendment jurisprudence, law enforcement cannot take files off these smart devices without a warrant. Any warrantless search or forced removal of information would violate a citizen’s reasonable expectations of privacy under the Fourth Amendment.

The Foundation of the Fourth Amendment’s Search & Seizure Jurisprudence

When an individual has a subjective expectation of privacy and society is prepared to recognize this expectation as “reasonable,” the Supreme Court has held any search that violates this expectation is a violation of the Fourth Amendment.[3] Katz v. United States was the first case to hold that oral statements were subject to the Fourth Amendment’s search and seizure protections.[4] In Katz, the defendant was indicted on federal charges for transmitting betting information by telephone from Los Angeles to Miami and Boston.[5] During the investigation, the prosecution recorded his phone conversations by placing a wiretap device on the outside of a phone booth.[6] The Supreme Court ultimately held that the Fourth Amendment protects people rather than places.[7] The Court stated “[w]hat a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”[8] In extending the Fourth Amendment to oral statements, the Supreme Court used a two-prong test.[9] Justice Harlan articulated an individual’s actions should be protected “when a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to accept as reasonable.”[10]

The Court has since held that there are limits to an individual’s reasonable expectation of privacy.[11] In Smith v. Maryland, the Court held that a pen register that was installed on an individual’s phone did not violate the Fourth Amendment.[12] The Court permitted the installation of the pen register because the device (1) did not acquire the contents of the communication; (2) only revealed data already known to be public; and (3) the individual voluntarily signed up with the phone company.[13] Together, the Katz and Smith cases can be read to hold that generally, when an individual maintains a subjective expectation of privacy that society deems reasonable, the Fourth Amendment will protect oral statements.

An Age of New Technology

“It would be foolish to contend the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[14] The Court has held that “to withdraw protection of this minimum expectation [of privacy] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”[15] In Kyllo v. United States, police used thermal imaging technology to detect heat emitting from a suspected marijuana greenhouse.[16] The Supreme Court held that the use of the technology without a warrant constituted an unlawful search and deemed it unconstitutional.[17] It reasoned that because the technology revealed intimate details of the home, using the technology without a warrant intruded on the occupants’ reasonable expectation of privacy.[18]  The Supreme Court applied a similar analysis to an individuals’ cellphone.[19] In Riley v. California, law enforcement pulled over the petitioner for expired tags and arrested him for driving under a suspended license.[20] During a routine search of his vehicle, police found his cell phone and searched the device without a warrant.[21] Law enforcement found picture and text message evidence that implicated the petitioner in an earlier gang-related shooting.[22] The Court reasoned that the search was unreasonable because the phone posed no threat to officer safety and was in no danger of destruction after it was confiscated.[23] The Court held “modern [technology], as a category, implicate privacy concerns far beyond those implicated by a search of a cigarette pack, a wallet, or a purse.”[24] “With that [technologies] contain and all they may reveal, [devices] hold for many Americans ‘the privacies of life.’”[25] Due to the intimate information contained in “smart devices,” the Supreme Court held that without a warrant, searches of these cell phones are unconstitutional.[26]

The Balance Between Privacy and Security

Applying Fourth Amendment jurisprudence, law enforcement cannot search “smart devices” that are discovered incident to an arrest without first obtaining a specific warrant for that device. In the balance between personal privacy and community security, the Fourth Amendment leans towards privacy. The Katz test laid down framework that can be directly applied to the search of a “smart device” like an Amazon Echo, Google Home, or Amazon Alexa. The first prong mandates a person must have an actual, subjective expectation of privacy.[27] When a customer buys a smart device, they do not expect the information that they put on the device to go public. Everything from personal communications, bank statements, and intimate thoughts can be found on these devices. An individual would not put such sensitive information on a device if they believed that law enforcement could immediately search it without a warrant. This expectation of privacy is one that society is prepared to recognize as “reasonable.” Due to the pervasive nature of this technology, the majority of the nation can recognize the importance of this expectation. As the Supreme Court estimated in Riley, approximately ninety-percent of citizens have some type of cell phone or technological device.[28]

The reasoning of Smith and the disclosure of information to your phone company could challenge this argument. The case of the Arkansas murder can be distinguished from Smith. In Smith, the Court ruled there was no reasonable expectation of privacy because the petitioner knew or should have known that his data would be disclosed to the phone company.[29] However, the law enforcement action in Smith was upheld because a pen register did not reveal the content of communication.[30] Customers recognize phone companies have access to what numbers they dial but they do not expect the nature of their calls and details of such to be saved by the phone company and subsequently turned over to police. Secondly, the data that could be revealed on the smart devices are intimate details that are not already known to the public. Lastly, while it could be argued that the customer voluntarily purchased the device, they did not sign up for the possibility that their personal and intimate information to be made public or available to law enforcement. Smith and the Arkansas case can be distinguished because phone numbers and individual dials are far less personal than the content and nature of one’s calls and personal information.

Using the reasoning of Katz and Smith, the Supreme Court has held that due to the nature of the information found on smart devices and the potential for its exposure, a warrantless search of such a device is unconstitutional. In the Kyllo case, the government argued that a search was constitutional because it did not “detect private activities occurring in private areas.”[31] These devices hold some of the most personal and intimate details of a person’s life that occur in private areas. An Amazon Echo has the potential to hold someone’s address, bank statements, prescriptions, alcohol or drug abuse information, political agendas, romantic details, and religious beliefs.[32] The fact that technology now allows an individual to carry such information in their hand does not make the information less worthy of the protection established by the Fourth Amendment. Due to the sensitive nature of the information contained in these devices and the susceptibility for abuse, the Court has consistently sent the same message when it comes to searching technological devices – in addition to a warrant required to search a home, a separate warrant would be needed in order to search a smart device.[33]


The Supreme Court established when an individual has a reasonable expectation of privacy and it is an expectation that society is ready to accept, a warrantless search of a device is unconstitutional. When analyzing the search of a smart device, an individual expects that their intimate details will not be exposed when buying such a device. Due to the pervasive nature of phones in society, it is an expectation that society is ready to accept. The holding in Smith does not apply to smart devices due to the type of information that is being exposed. Furthermore, due to the nature and details that could be exposed by such a search, the Supreme Court would most likely hold a warrant is needed. Therefore, if the search of a smart device case came before the Court, they would rule that that a warrant is needed even if the device is discovered incident to an arrest.

[1] U.S. Const. Amend. IV

[2] Eliot C. McLaughlin, Suspects Oks Amazon to hand over Echo recordings in murder case, 2017,

[3] Katz v. United States, 88 S.Ct. 507, 516 (1967)

[4] Id. at 512

[5] Id. at 509

[6] Id.

[7] Id. at 511

[8] Id.

[9] Id. at 515

[10] Id. at 516

[11] See generally Smith v. Maryland, 99 S.Ct 2577 (1979)

[12] Id. at 2581

[13] Id.

[14] Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001)

[15] Id. at 2042

[16] Id. at 2040

[17] Id. at 2046

[18] Id. at 2043

[19] Riley v. California, 134 S.Ct. 2473, 2479 (2014)

[20] Id. at 2480

[21] Id. at 2481

[22] Id.

[23] Id. at 2486

[24] Id. 2488-89

[25] Id. at 2494-2495

[26] Id. at 2495

[27] Id.

[28] Riley, 134 S.Ct. at 2479

[29] Smith, 99 S.Ct. at 2581

[30] Id.

[31] Kyllo, 121 S.Ct. at 2045

[32] Riley, 134 S.Ct. at 2490

[33] Id. at 2495

The Boundaries of the Second Amendment

Amona Al-Refaei, University of Cincinnati Law Review, Associate Member

In 1791, the Second Amendment provided citizens with the right to keep and bear arms, specifying that the right shall not be infringed.[1] Despite this long history, the Supreme Court’s “first in depth examination of the Second Amendment is younger than the first iPhone.”[2] In 2008, the Supreme Court struck down an ordinance that generally prohibited the possession of handguns.[3]  In  District of Columbia v. Heller, an ordinance required residents to keep their lawfully owned firearms “unloaded and dissembled or bound by a trigger lock or similar device” unless the guns are in a place of business or are being used for lawful recreational activities.[4] The Court held (1) the Second Amendment protects an individual right to possess a firearm unconnected to serving a militia;[5] (2) the central component of the right itself was self-defense;[6] and (3) the Second Amendment provided an individual right for responsible citizens to use arms in defense of hearth and home.[7] However, the Court noted, “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[8]

Following the Court’s opinion in Heller, the District of Colombia created a new gun regulation. This new gun regulation was recently struck down in Wrenn v. District of Columbia, where the court held that the right to carry a concealed weapon is a “core” right protected by the Second Amendment.[9] However, in Kachalsky v. Cty. Of Westchester, the Second Circuit held a New York regulation limiting handgun possession to those with a special need for self-protection was permissible under the Second Amendment.[10] The D.C. Circuit reached an incorrect decision in Kachalsky because the court extended the Second Amendment protection beyond that provided in Heller.

Wrenn v. District of Columbia

In Wrenn, the gun regulation limited licenses to carry concealed handguns to those showing a “good reason to fear injury to [their] person or property” or “any other proper reason for carrying a pistol.”[11] To receive a license based on a “good reason to fear injury,” applicants had to show a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.”[12] Moreover, the regulations stated living or working “in a high crime area shall not by itself establish a good reason” to carry.[13]  This regulation was the District of Columbia’s third major attempt in forty years to use gun regulations to balance public safety and the Second Amendment.[14]

The D.C. Circuit stated Heller revealed some absolute barriers created by the Second Amendment that no gun law may breach.[15] Because the Second Amendment is a fundamental right, the court needed to determine whether a gun law imposes “substantially” on the Second Amendment’s core.[16] The court determined the core or central component of the Second Amendment right to keep and bear arms protects individual self-defense by responsible citizens.[17] However, the court in Wrenn stated this does not mean home defense is the only right at the amendment’s core.[18] The Second Amendment’s core includes a responsible citizens’ right to carry common firearms for self-defense beyond the home.[19] The court concluded that the individual right to carry firearms beyond the home for self-defense falls within the core of the Second Amendment’s protections.[20]

Kachalsky v. Count of Westchester

The Second Circuit upheld the New York handgun licensing regulation, which did not ban handguns but required individuals to have an actual reason to carry the weapon.[21] Under New York’s regulation of firearms, individuals were required to show proper cause for the issuance of the license to carry.[22] Proper cause includes carrying a handgun for target practice, hunting or self-defense.[23] To obtain a license without any restrictions, individuals were required to demonstrate a special need for self-protection distinguishable from that of the general community.[24] Every application triggered a local investigation by police into the applicant’s mental health history, criminal history, and moral character.[25]

The Second Circuit stated Heller was never meant to clarify the entire field of Second Amendment jurisprudence.[26] The Second Circuit stated, “Second Amendment guarantees are at their zenith within the home.”[27] But, the court noted Heller did not explain the scope of the right beyond the home or the standards for determining when and how the right can be regulated.[28] The court observed that the states often disagreed as to the scope of the right to bear arms.[29] The court held that the good-reason law did not operate as a complete ban on the possession of handguns in public.[30] It concluded that the good-reason law fell outside the core Second Amendment protections identified in Heller because the regulation in New York affected the ability to carry handguns in public and the D.C. regulation ban applied in the home.[31]

The Second Amendment’s Limits

The D.C. Circuit was incorrect to hold that good-reason laws should be treated as a complete prohibition on the Second Amendment right to bear arms.[32] The court also should not have stated the regulation in Wrenn was similar to the ban disputed in Heller, which required residents to keep their firearms either unloaded or bound by a trigger lock at home,[33] because the regulation in Wrenn applied to carrying a concealed firearm. The Wrenn court argued the Second Circuit reached an incorrect result because it failed to use the historical method, as the Supreme Court required in Heller, to determine the Amendment’s core and boundaries.[34] The Second Circuit correctly noted the history of the Second Amendment does not provide clarity because the history indicates the states have disagreed about regulating firearms since the Amendment was ratified.[35]

Rather than striking down the regulation without applying any tiers of scrutiny, the court in Wrenn should have applied intermediate scrutiny to determine whether the regulation violated the Second Amendment. In Heller, the Court stated the “core” protection of the Second Amendment is the “right of law-abiding responsible citizens to use arms in defense of hearth and home.”[36] Applying less than strict scrutiny makes sense when the regulation does not burden the “core” of the right. Similar logic is used for analyzing other enumerated rights. For example, when analyzing First Amendment claims, regulations for commercial speech are subject to intermediate scrutiny,[37] but content-based restrictions on noncommercial speech are subject to strict scrutiny.[38] So long as challenged gun regulations further an important government interest, such as protecting the public, the regulations should be upheld by the judicial branch.

When crafting good-reason laws, the government’s primary purpose is to prevent crime and increase public safety. The fundamental right to keep and bear arms is at its height when in individual’s homes. However, the right is not without limits outside the home. So long as the regulation passes intermediate scrutiny, it should be upheld. Additionally, good-reason laws are not outright bans on possession or use of firearms. These laws seek to reduce violent crimes, and citizens with a special need for self-defense are still permitted to carry firearms. While some citizens may not be permitted to carry firearms under good-reason laws, the potential to decrease violent crimes is enough to uphold a good-reason law.

The Supreme Court has a long history of striking down legislation that extends into the home.[39] For example, in Lawrence v. Texas, the Court held the state’s efforts to regulate private sexual conduct between consenting adults is not permitted when it intrudes into the home, because the state is not omnipresent in the home.[40] Moreover, the Supreme Court’s opinion in Heller did not provide a basis for applying the Second Amendment protections equally in the home and in public. Instead, the Supreme Court noted there is a heightened right for individuals to protect their homes.[41] Additionally, the Supreme Court has approved bans on some types of guns so long as guns that are most useful for home defense remain accessible.[42]

Similarly, other fundamental rights are subject to limitations under some circumstances. For example, the freedom of speech is significantly more limited when it is categorized as commercial speech than when the speech takes place in other settings, particularly in the home. Similarly, the Second Amendment protection may apply in the home, but the legislature should be permitted to establish limits on this right in the public so long as the regulations would satisfy intermediate scrutiny.  However, the government’s interest in public safety and crime prevention cannot be used to create a prohibition of firearm possession.


Legislatures concerned with risks to public safety may be tempted to regulate the possession or carrying of firearms. The Supreme Court has recognized and protected the Second Amendment right to possession in the home. However, the right is still subject to some limitations, including banning possession for felons and mentally ill individuals. The D.C. Circuit was incorrect by failing to apply any of the tiers of scrutiny after finding a good-reason law created a total ban on the right to bear arms. Instead, courts should follow the Second Circuit and determine whether the legislation is substantially related to the achievement of an important governmental interest.

[1] USCS Const. Amend. 2

[2] Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017).

[3] District of Columbia v. Heller, 554 U.S. 570, 574, 128 S. Ct. 2783, 2788 (2008).

[4] Id. at 575.

[5] Id. at 577.

[6] Id.

[7] Id. at 635.

[8] Id. at 626-27.

[9] Wrenn, 864 F.3d at 657.

[10] Kachalsky v. Cty. of Westchester, 701 F.3d 81, 83 (2d Cir. 2012).

[11] Wrenn, 864 F.3d at 655.

[12] Id.

[13] Id. at 656.

[14] Id.

[15] Id. at 655.

[16] Id. at 657.

[17] Id. at 657.

[18] Id. at 657.

[19] Id.

[20] Id. at 661.

[21] Kachalsky, 701 F.3d at 84.

[22] Id. at 85.

[23] Id. at 86.

[24] Id.

[25] Id. at 87.

[26] Id. at 88.

[27] Id. at 89.

[28] Id.

[29] Id. at 91.

[30] Id. at 91.

[31] Id. at 94.

[32] Wrenn, 864 F.3d at 665.

[33] Heller, 554 U.S. at 574.

[34] Wrenn, 864 F.3d at 661.

[35] Kachalsky, 701 F.3d at 91. “Compare Bliss v. Commonwealth, 12 Ky. 90, 1822 WL 1085, at*3 (1822) (concluding that a prohibition on carrying concealed weapons was unconstitutional), with Aymette v. State, 21 Tenn. 154, 1840 WL 1554, at **4-6 (1840) (citing to Bliss but reaching the opposite conclusion).”

[36] Heller, 554 U.S. at 634-45.

[37] See Florida Bar v. Went for It, Inc., 515 U.S. 618, 624-25 (1995).

[38] See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

[39] See Lawrence v. Texas, 539 U.S. 558 (2003).

[40] See Id. at 562. “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.”

[41] Id. at 628.

[42] Heller, 554 U.S. at 627.

Political Questions and Few Answers

Patrick Reagan, Associate Member, University of Cincinnati Law Review

No constitutional law class is complete without reading and discussing Baker v. Carr, where the Supreme Court held that a claim that Tennessee’s state legislative district map violated the Equal Protection Clause should proceed.[1] The Court also held that the claim did not present a non-justiciable political question, and Justice Brennan articulated six core principles[3] that have since been used in evaluating whether a claim presents a political question.[4] One of these principles is “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”[5] This factor has proved to be fortuitous in the decades since Baker was decided. Two cases that illustrate that “potentiality of embarrassment” are Citizens United v. Federal Election Commission and Roe v. Wade.[6] Legislative and political backlash from these and other cases has led to an environment in which ordinary federal judicial nominations have become hyper-politicized. A prime example of this is the Senate holding the late Justice Antonin Scalia’s Supreme Court seat open for an entire year.[7] Forcing the judiciary to conform to the political ideals of the legislature severely impairs the Supreme Court’s ability to perform several of its essential functions, which is not good for anyone.

      Roe v. Wade and the Ensuing Controversy

Perhaps no other Supreme Court ruling has engendered so much controversy as Roe v. Wade, which legalized abortion in the United It has played a prominent role in both presidential campaigns and Supreme Court nominations[10] and pitted the Court against state legislatures who have tried many times to restrict abortion access and abrogate Roe.[11] These are  “multifarious pronouncements by various departments on one question,” about which Justice Brennan cautioned about in his Baker v. Carr opinion.[12] The fight between the Supreme Court and legislators over the question of abortion is far from over. That much was clear during Whole Woman’s Health v. Hellerstedt, which dealt with abortion restrictions passed in Texas.[13]

While Roe resolved a constitutional issue and prevented legislators from having to make difficult value judgments before casting their vote, it sapped much judicial capital from the Court and took it in a direction that could not have been foreseen by Justice Blackmun. It inspired what is referred to as “Roe rage,” which is a social movement that uses Roe as a wedge to motivate people to support its traditional, socially conservative view of America.[14] Those who have succumbed to “Roe rage” and others who oppose it generally have woven it into a greater narrative about the role of the judiciary. It is common to hear Roe referred to as a prime example of “judicial activism” or “legalizing the slaughter of innocent unborn lives,”[15] and the case is still discussed by scholars from both sides of the ideological aisle.[16]

Roe has also changed the environment for judicial nominations. A perfect example of this is the nomination of Harriet Miers, President George W. Bush’s former White House counselor, to the Supreme Court to fill the seat vacated by Justice Sandra Day O’Connor.[17]  Her nomination was withdrawn just 24 days after it was announced.[18] While her nomination was pending, Senator Sam Brownback of Kansas stated there was a “good chance” he would vote against her nomination if she stated that Roe is the law of the land.[19]

Citizens United and its Ensuing Controversy

What Roe is to the right, Citizens United v. Federal Election Commission is to the left. The conservative non-profit Citizens United (a group led by President Trump’s deputy campaign manager David Bossie) wanted to air a film critical of Hillary Clinton and advertise it on television shortly before the 2008 Democratic presidential primary in violation of federal election law.[20] The Court in Citizens United (1) removed limits on corporate spending in elections; (2) applied strict scrutiny to political speech restrictions; and (3) affirmed under the First Amendment the right of corporations to engage in political activities. It also opened a Pandora’s box of criticism.

In his 2010 State of the Union address, President Obama took a swipe at the Court. He stated that the ruling “reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”[22] He further urged Congress “to pass a bill that helps correct some of these problems.”[23] By “problems,” President Obama was referring to the Citizens United ruling.[24]

It was not just President Obama who took umbrage with the ruling. Former Judge Richard Posner of the Seventh Circuit said in a speech at the University of Chicago Law School function that “[o]ur political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”[25] Similarly, Federal Election Commission member Ellen Weintraub wrote an editorial in The New York Times criticizing the decision.[26] Citizens United also impacted the 2016 Democratic presidential primary contest between Sen. Bernie Sanders (I-VT) and Sec. Hillary Clinton, where both candidates stated that overruling the decision would be their litmus test for any Supreme Court nominee they would pick while president.[27]

Perhaps most intriguing is that Citizens United has sparked a grassroots movement called Move to Amend, which describes itself as a “coalition of hundreds of organizations and hundreds of thousands of individuals committed to social and economic justice, ending corporate rule, and building a vibrant democracy that is genuinely accountable to the people, not corporate interests.”[28] The group calls for passage of a twenty-eighth amendment to the Constitution, which would: (1) strip corporations and other non-human entities of any rights under the Constitution; and (2) require federal, state, and local entities to “regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures.”[29] Move to Amend lists hundreds of organizations as endorsers of the amendment, including the Sierra Club, North Carolina AFL-CIO, Minnesota AFL-CIO, and the Green Party of Hamilton County, Ohio.[30]

Future Considerations

Newton’s third law of physics holds that for every action, there is an equal and opposite reaction. This is similar to Justice Brennan’s sixth consideration in Baker v. Carr, that courts should pay attention to the “potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Unfortunately, the Court’s actions in Baker and Citizens United have not engendered an equal or opposite reaction. Politicians have perverted normal judicial criticism and used it for their advantage. Such criticism has made it more difficult for litigants who are arguing deep, controversial issues to get a clear answer that would clarify what is at stake for them and the country because the Court must now always look behind its back when taking controversial cases.

This backlash has also clogged and stalled the judicial nomination and confirmation process. While it is important to identify a nominee’s legal and judicial philosophy to ensure that qualified people are on the bench, some politicians have taken it too far. Senators frequently veer into tangents when questioning nominees’ backgrounds.[32] They ask questions about cases like Roe and Citizens United that are meant to appease their voter base in anticipation of their reelection campaigns.

That does not mean that the Court decided Roe or Citizens United incorrectly. The law should not bend to political pressure; and the moment it does, the door is opened down a slippery path to a judiciary that more resembles a series of “kangaroo courts” rather than a serious, removed venue for people to receive redress for wrongs committed against them. If the Court were to shy away from taking a case every time they feared an errant tweet or floor speech from an enraged member of Congress, the justices might as well just pack-up and close shop. Rather, the Court should be pragmatic and realize that it has a limited amount of judicial Big cases require thousands of hours of work, careful deliberation, and will have indelible effects on the country and the law—and that’s ok. It is likely what the Framers meant when they entrusted the Supreme Court with its authority back in 1789. Unfortunately, the likely reality is that this destructive cycle will not stop any time soon.


Instead of spouting poll-tested platitudes criticizing Roe, Citizens United, and the like that rake in donations and stir up support, politicians should have a little more deference and respect for the rule of law. Today’s contention over the Court’s role and fights over judicial nominees is what Justice Brennan in Baker v. Carr predicted would happen when the Court wades into controversial cases, but that does not mean politicians have to fuel the fire. This country is governed by a document that is a product of the Enlightenment that has been used to guarantee substantive rights since the inception of judicial review by the Supreme Court. The Supreme Court needs the flexibility to wade into difficult issues that have deep and lasting effects on society, otherwise Baker v. Carr will become an “ad hoc litmus test” that neuters judicial review.[33]

[1] Baker v. Carr, 369 U.S. 186, 237 (1962).

[2] Id. (“We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.”).

[3] Id. at 217 (“[p]rominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”). Thus, if a claim presents a political question, then it is deemed non-justiciable and may not be adjudicated by a court.

[4] See, e.g., El-Shifa Pharmaceutical Industries Co. v. U.S., 607 F.3d 836, 842 (D.C. Cir. 2010) (dismissing Federal Tort Claims Act lawsuit brought by a Sudanese pharmaceutical company after a cruise missile destroyed its plant; the court wrote “[w]e have consistently held, however, that courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security. . . . The political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”).

[5] Baker, 369 U.S. at 217.

[6] See Roe v. Wade, 410 U.S. 113 (1973); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[7] Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR (March 16, 2016), The article quotes Senate Judiciary Committee Chairman Charles Grassley (R-IA), who said the following after President Obama nominated Judge Merrick Garland to fill the Supreme Court seat vacated by the death of the late Justice Antonin Scalia: “Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature? This year is a tremendous opportunity for our country to have a sincere and honest debate about the role of the Supreme Court in our constitutional system of government.”

[8] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, Politico (May 10, 2015) (Sen. Sanders states his litmus test for any Supreme Court nominee would be whether they will overturn Citizens United v. Federal Election Commission); Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, The Hill (Feb. 3, 2016),; RNC Communications, Republican Platform 2016, (July 18, 2016),[1]-ben_1468872234.pdf, at 10 (“Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia.”).

[9] Roe, 410 U.S. at 113.

[10] Jerome A. Barron, C. Thomas Dienes, Wayne McCormack, & Martin Redish, Constitutional Law: Principles and Policy § 6.02, p. 570 (8th ed. 2012).

[11] See, e.g., Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[12] Baker, 369 U.S. at 217.

[13] See, e.g., Whole Woman’s Health, 136 S. Ct.

[14] Id. at 572 (quoting Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism in Backlash, 42 Yale L.J. 373, 377 (2007)).

[15] See, e.g., Evan Puschak, Rubio trashes Roe v. Wade as ‘blatant’ judicial activism, MSNBC (Jan. 22, 2013),

[16] See, e.g., Jack Balkin, Abortion and Original Meaning, 24 Const. Comentary 291 (2007); Philip Heymann & Douglas Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. Rev. 765 (1973).

[17] Bush picks White House counsel for Supreme Court, CNN (October 4, 2005),

[18] Michael A. Fletcher and Charles Babington, Miers, Under Fire From Right, Withdraws as Nominee, The Washington Post (October 28, 2005),

[19] GOP Senator Concerned About Miers’ Abortion Views, ABC News (Oct. 5, 2005),

[20] Citizens United v. Federal Election Comm’n., 558 U.S. 310, 320-321 (2010).

[21] Id. at 340-65.

[22] Robert Barnes, Reactions split on Obama’s remark, Alito’s response at State of the Union, The Washington Post (January 29, 2010),

[23] Id.

[24] Id.

[25] James Warren, Richard Posner Bashes Supreme Court’s Citizens United Ruling, The Daily Beast (July 14, 2012),

[26] Ellen L. Weintraub, Taking on Citizens United, The New York Times (March 30, 2016),

[27] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, supra; Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, supra.

[28] MTA Coalition – Mission, Move to Amend,

[29] Move to Amend’s Proposed 28th Amendment to the Constitution, Move to Amend,

[30] Endorsing Organizations, Move to Amend,

[31] Baker, 369 U.S. at 217.

[32] For example, Justice Samuel Alito faced criticism from senators over his membership in a conservative Princeton alumni group. See David Stout, Alito Sworn In as Justice After 58-42 Vote to Confirm Him, The New York Times (Jan. 31, 2006), This year at an event in New Zealand, Chief Justice John Roberts lamented that Supreme Court nominations have become too politicized, stating “You’re not electing a representative, so you’re not entitled to know what their views on political issues are.” See Chief Justice Roberts: Confirmation process for justices too politicized, Politico (July 26, 2017), In criticizing the Senate’s removal of the filibuster for judicial nominees, Jon Healey of Los Angeles Times wrote “That’s why interest groups push senators to go further, to trying to unearth a judge’s sympathies in the hope of better predicting whether he or she will be an ally on issues they care about. The quality of a judge’s legal reasoning isn’t as important as where the reasoning might lead.” See Jon Healey, Congress didn’t just nuke the filibuster, it permanently politicized the Supreme Court, Los Angeles Times (Apr. 6, 2017),


[33] Davis v. Bandemer, 478 U.S. 109, 126 (1986).

A Patient’s Unambiguous Right

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

            The now infamous video released in July of 2015 depicting a Planned Parenthood executive discussing prices for fetal tissue stunned viewers and fueled many anti-abortion advocates to call for the defunding and closure of all Planned Parenthood facilities.[1] Today, the consequences of the video release as well as the subsequent debate over the issues involved linger in homes and courtrooms across the country. In particular, the question of whether state and federal funding of Planned Parenthood facilities should continue dominates this debate. The Eighth Circuit addressed this question in the context of Medicaid benefits.[2] Breaking with precedent established by the Fifth, Sixth, Seventh, and Ninth circuits, the Eighth Circuit found that the choice-provider provision of the Medicaid Act does not create a federal right for individuals to enforce payments to specific medical providers, namely Planned Parenthood.[3]

            This ruling resulted from litigation concerning the Arkansas Department of Human Services’ decision to suspend Medicaid payments to Planned Parenthood facilities after the 2015 video was released.[4] The Eighth Circuit held that the Arkansas patients had no private right of action under 42 U.S.C. §1983 guaranteed by the relevant section of the Medicaid Act.[5] However, the Eighth Circuit’s reading of the provision failed to see the unambiguous right conferred in the statute and incorrectly found that Congress did not intend for Medicaid beneficiaries to have a right of action under §1983.

Does v. Gillespie

            Following the release of the 2015 Planned Parenthood video, the Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma.[6] Three Arkansas Medicaid patients sued the director of the Department of Human Services under 42 U.S.C. §1983 claiming the termination of the contract with Planned Parenthood violated their federal rights guaranteed under §23(A) of the Medicaid Act.[7] The lower courts agreed that the Act provided such a remedy and enjoined the Department from suspending payments to Planned Parenthood facilities.[8] However, the Eighth Circuit Court of Appeals reversed, holding that no such right exists.[9]

            The Eighth Circuit applied a three-part analysis to determine that §23(A) of the Medicaid Act does not unambiguously create an enforceable federal right.[10] First, the court argued that the focus of the Act is “two steps removed” from the interests of the patients who seek the services.[11] Second, the court reasoned that Congress had already plainly conferred another means of enforcing State’s compliance.[12] Finally, the court argued that the aggregate focus of the Act as a whole does not give rise to an individual right.[13] Relying on these three conclusions, the court vacated the injunction enacted by the lower court which prevented the Arkansas Department of Human Services from suspending Medicaid payments to Planned Parenthood.[14] In other words, the court upheld the suspension of payments from Medicaid to Planned Parenthood.

Holdings of the Fifth, Sixth, Seventh, & Ninth Circuits

            Prior to the holding in Does, the Fifth, Sixth, Seventh, and Ninth Circuits examined the same provision of the Act and came to the opposite conclusion.[15] All four earlier rulings applied the same framework and held that §23(A) of the Medicaid Act, or the “freedom-of-choice” provision, did create a private right of action enforceable under §1983.[16] Notably, all five courts, including the Eighth Circuit, relied on Gonzaga University v. Doe, which held that in order to support an action under §1983, a plaintiff must establish that Congress clearly intended to create an enforceable federal right.[17] Interpreting the plain language of the relevant provision, each of the other four circuit courts found that Congress’ intent was clear within the language of the provision.[18] Specifically, those courts relied on the interpretation that §23(A) refers to “any individual eligible for medical assistance.”[19] The Fifth, Sixth, Seventh, and Ninth Circuits all emphasized the use of the word “individual” within the provision coupled with other textual support – including “rights-creating language” within the Act— to support the conclusion that Congress intended to create an enforceable individual right within the Act.[20]

The Intent Is Clear

            The Eighth Circuit offered its three-part analysis to explain why the plaintiffs would not succeed on their §1983 claim. However, each part of the analysis fails to stand up to precedent or reason. First, the court posed that the Act is “two steps removed” from the interests of the patients because it is considered a directive to a federal agency, not a directive to an individual.[21] The court relied on the holding in University Research Association, Inc. v. Coutu, which held that a statute phrased as a directive to a federal agency typically does not confer an enforceable right to an individual.[22] However, a key difference between the statute analyzed in that case and the statute relevant to the case at hand is that the statute in Coutu did not use the word “individual” to describe the protected person, but rather only described “classes of laborers.”[23] This difference in wording is essential to the analysis. The Eighth Circuit noted several times in their opinion that the plaintiff’s claim failed because §23(A) of the Act did not confer an “unambiguous right” to an individual, as required by Gonzaga.[24] However, unlike the statute in Coutu, the Medicaid freedom of choice provision does clearly and unambiguously state that “any individual eligible for medical assistance may obtain such assistance.”[25] Therefore, the ambiguity in the Coutu statute that the court cites is not present in the Medicaid Act; the clear language of the text does unambiguously confer a right to an individual.

            Further, the Freedom of Choice provision uses rights-creating language to indicate Congress’ clear intention to provide rights to individuals under the Medicaid Act. For example, the language of the Act which reads that Medicaid-managed care organizations “…shall not restrict the choices of the qualified person from whom the individual may receive services” creates a clear right for the individual. The use of the word “individual” paired with the rights assured to that individual in the statute, make it clear that congress intended to extend specific rights to individual patients under the Act and thus it is not removed from the interest of those patients.

            Second, the Court reasoned that because Congress created a method for enforcing state compliance through withholding of federal funds, it is reasonable to conclude that Congress did not intend to create another enforceable right for individual patients.[26] Specifically the Eighth Circuit noted concern for potential parallel litigation with inconsistent results.[27] However, the existence of alternative remedies does not serve as a bar to §1983 relief.[28] As noted by the Does dissent, Blessing v. Freestone – which set forth a controlling test for determining whether a statutory provision creates a private right of action enforceable under §1983 – established that the presence of alternative administrative mechanisms to protect the plaintiff’s interests does not prohibit relief based under §1983.[29] The presence of alternative remedies can hardly be considered clear evidence that Congress intended to prevent any other potential remedy, especially when the alternative remedies are for organizations and not for the individuals themselves.  Furthermore, the controlling law specifically surrounding §1983 remedies does not create such a barrier.

            Finally, the plurality in Does posed that because the Medicaid statute has an “aggregate focus” as opposed to an “individual focus,” there is no implied individual right.[30] The court reasoned that the statute has an aggregate focus because the Medicaid Act links federal funding to substantial compliance by providers instead of individual compliance.[31] By categorizing this “focus,” the court explained that because the focus is on the aggregate compliance of the providers and not the individual, the remedy should be sought through the providers and not the individual.[32] In this case, that means the provider who has stopped receiving funding from Medicaid should file an administrative appeal and the individual can be “represented” through that process.[33] In short, the court argued that the individual is “covered” through the provider’s remedy. However, permitting a provider to file an appeal does not provide nearly enough protection for the rights of the patients. As was seen in Does, the provider did not choose to file such an appeal, and therefore, the individual patients were left with no remedy. The argument that because one actor has the ability to seek a remedy, another actor, with no power to influence the first party, is protected by that right cannot hold weight.


            The Medicaid Act was designed to provide medical assistance to a class of citizens often most in need of medical care and without the means to procure it. The rights of those individual patients must be the first priority of the program and Congress’ intent in writing the provisions of the Act should be read in that light. Four circuit courts and several district courts below affirmed the ability of an individual patient to protect his right to choose his healthcare provider. The Eighth Circuit holding fails to interpret the language of the Act in the way that it should be understood: as a voice for the patients. Even using the court’s own “unambiguous intent” standard, it is clear that Congress intended for the rights of the individuals to be protected when they wrote the word “individual” into the free choice provider provision of the statute. The language is not removed from the rights of the individual and the analysis should likewise not be removed from that lens. The Medicaid Act did create an unambiguous federal right for individual patients under §1983 and that right should be upheld.

[1]On July 14, 2015 an anti-abortion group called “The Center For Medical Progress” released a secretly recorded video of Deborah Nucatola, the senior director of medical services at Planned Parenthood, discussing the procurement of fetal tissues when conducting abortions. See Steve Almasy, Planned Parenthood exec, fetal body parts subject of controversial video, (July 15, 2015),

[2] Does v. Gillespie, 867 F.3d 1034, 1037 (8th Cir. 2017).

[3] Id. at 1046.

[4] Id. at 1038.

[5] Id. at 1040; 42 U.S. Code § 1983, Civil action for deprivation of rights: Creates a right of action for any citizen deprived of any rights, privileges, or immunities secured by the Constitution.


[6] Does, 867 F.3d at 1037.

[7] Id. at 1038; §23(A) provides that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required”

[8] Does, 867 F.3d at 1035.

[9] Id. at 1045.

[10] Id. at 1041.

[11] Id.

[12] Id.; Congress allows for withholding of federal funds as the means of ensuring state compliance.

[13] Does, 867 F.3d at 1042.

[14] Id. at 1045.

[15] Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 974-76 (7th Cir. 2012); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th Cir. 2013).

[16] Does, 867 F.3d at 1050.

[17] 536 U.S. 273, 283 (2002).

[18] Does, 867 F.3d at 1042.

[19] Id. (emphasis added).

[20] Id.; Rights creating language includes language that confers a right to the beneficiaries to sue, etc.

[21] Id. at 1041.

[22] 450 U.S. 754, 756 (1981).

[23] Id. at 757.

[24] Does, 867 F.3d at 1041.

[25] Id. at 1040. (emphasis added).

[26] Id. at 1041.

[27] Id.

[28] Does, 867 F.3d at 1051.

[29] Id. citing 520 U.S. 329, 347 (1997).

[30] Id. at 1041.

[31] Id.

[32] Id.

[33] Does, 867 F.3d at 1038.

The Kids Aren’t Alright: The Risk of Considering a Juvenile’s Prior Arrests in Addition to His Convictions When Deciding to Transfer a Case to Criminal Court

Monica Welker, Associate Member, University of Cincinnati Law Review

            There is a lack of clarity regarding how our most vulnerable citizens—our youth—are tried for criminal acts. Two different juveniles charged with federal crimes could be tried according to two different standards for the same alleged act, depending on where they live. One might be tried in a juvenile court, with a shorter possible sentence, while another might be tried in a criminal court. Consider the following examples:

  1. Ellen is a sixteen-year-old accused of armed bank robbery. She has always been in trouble, and no one is surprised to hear about her arrest. It is the third time she has been arrested. Her first arrest was for drug possession, when police found her with heroine in her high school bathroom. It resulted in a conviction, mandatory treatment, and community service. Her second arrest was for another alleged armed robbery but the victims, an elderly couple, died in a car crash on the way to the police station to identify her. As a result, she was released.
  2. Michael is another sixteen-year-old accused of armed bank robbery. He has been in trouble before but mostly as a result of his association with his older brother and his friends who call themselves a “gang.” He has been arrested for armed robbery and vandalism but has always been released and neither of those cases ever resulted in a trial. In each circumstance, he was in the wrong place at the wrong time when his brother’s gang was breaking the law and did not actively participate in the criminal behavior.

            In federal court, there is no clear guidance on whether Ellen and Michael’s prior arrests that did not result in convictions should be factored into the decision to transfer their cases from juvenile court to criminal court. This lack of guidance violates the constitutional guarantee of due process and protection from discrimination.


            In the United States, juveniles who commit criminal acts are tried in juvenile court unless the court determines that the case should be transferred to a criminal (adult) court. When determining whether to transfer a case, 18 U.S.C. § 5032 lays out six factors for a court to consider They are: (1) the age and social background of the juvenile; (2) the nature of the alleged offense; (3) the extent and nature of the juvenile’s prior delinquency record; (4) the juvenile’s present intellectual development and psychological maturity; (5) the nature of past treatment efforts and the juvenile’s response to such efforts; and (6) the availability of programs designed to treat the juvenile’s behavioral problems.”[3]

            Since 1998, there has been a circuit split over whether the plain language meaning of “prior delinquency record,” as found in the third factor, should include prior arrests that did not result in convictions. In July of 1998, the Seventh Circuit handed down its decision in United States v. Wilson, which held that prior arrests should be considered when examining the third factor.[4] Five months later, the Eighth Circuit ruled in United States v. Juvenile LWO that a “prior delinquency record cannot plausibly be interpreted to encompass evidence of conduct that has not been  . . . admitted to be delinquent or criminal.”[5] The split continues through today.[6]


            This unresolved split potentially violates the Fifth Amendment rights of juvenile defendants. In Bolling v. Sharpe, the Supreme Court ruled that “discrimination can be violative of due process.”[7] If the harshness of a juvenile’s sentence can depend on his arrest record instead of his conviction record, he is at a disadvantage when compared to an adult defendant who knows that his sentence will not be colored by arrests that did not result in convictions[8]. Additionally, the lack of a uniform legal standard in federal court can result in juveniles in different circuits being judged by two different standards, another potential due process violation.[9]


            This circuit split shows that two courts looking to the plain language of the same statute can interpret it differently. The Seventh Circuit in Wilson pointed out that the statute calls for a review of the delinquency record, which includes arrests.[10] It further argued that if Congress had wanted to exclude arrests, Congress would have written the statute to limit the inquiry to the juvenile’s prior convictions, not the entire record.[11] The Eighth Circuit in LWO likewise defended its ruling on the plain language of the statute but also cited In Re Sealed, a D.C. Circuit case from 1990.[12]

            In Re Sealed interpreted § 5032, but it focused on the second factor to be considered when deciding to transfer a juvenile to a criminal court: the nature of the offense. At issue was a district judge who considered a conspiracy charge that was dropped by the prosecution prior to the transfer hearing.[14] The court ruled that considering the dropped conspiracy charge was a violation of the juvenile’s due process rights.[15]

            When considering a transfer, a judge is required to assume that the juvenile committed the crime which brings him into the court on that day.[16] The reasoning is that if the juvenile is innocent of the accused crime, the criminal trial should be where all evidence of innocence or guilt be weighed.[17] Because the transfer hearing automatically assumes that the juvenile likely committed the crime, the court in Sealed ruled that uncharged criminal acts have no place in the transfer hearing.[18] If the juvenile is innocent of the crime he is charged with, he has an opportunity to clear his name with regard to those charges in the criminal trial. But the juvenile will never have a chance to argue his innocence of crimes which he was arrested for but not ultimately charged with. The D.C. Circuit ruled that if the juvenile’s conspiracy charge was dropped, the judge may not consider the dropped charge when determining the juvenile’s transfer.[20]

            Using this understanding, the Eighth Circuit in LWO wrote that considering arrests without convictions under the “delinquency record” factor did not fit within the plain language of the statute.[21] It found that the phrase “extent and nature of the juvenile’s delinquency record” unambiguously did not include prior arrests without convictions.[22] Therefore, the court left the door open to considering arrests without convictions under some of the other factors.[23] § 5032 explicitly requires judges to make findings with regard to each factor. Therefore, a judge could consider previous arrests without convictions when she considers a juvenile’s psychological maturity or the efficacy of past treatment efforts.[24]


            Because the courts conflict in their interpretation of the plain language found within the statute, one can look to the policy reasons behind the act. The D.C. Circuit in Sealed explored this avenue as well, pointing out that the purpose of §5032 was to rehabilitate youth, rather than punish them:

            The Act is premised on the notion that it is in the best interest of both the juvenile and society that juveniles be insulated from the stigma associated with criminal trials, the publicity, the retributive atmosphere and threat of criminal incarceration.

            Thus, the policy aims of the Act is the protection of juveniles from criminal trials. This implies a lax standard for transferring juvenile cases to criminal court.


            Considering the due process implications, the plain language of the statute, and the policy aims, the scale tips toward excluding arrests without convictions in the test for transferring cases to criminal court. If two circuits can take reasonable approaches to the plain language interpretation of the statute, and have two different results, then the statute defies the plain language approach. Therefore, the best interpretation is found elsewhere.

            The policy aims and the due process considerations are important factors when deciding what to review because the decision often creates a significant impact on a juvenile’s life. The Shield court specifically called for shielding juveniles from the retributive nature of the criminal courts.[26] If a kinder, gentler, more rehabilitative court system is the stated policy aim for juveniles, then reducing their due process rights seems counterproductive.

            Returning to the hypotheticals considered at the beginning, barring arrests only would permit Ellen’s drug arrest to be included in the judge’s consideration, but not her previous armed robbery. Under the same standard, Michael would have no delinquent record to examine. Although Ellen may not receive the harsh sentence preferred by some in the community, eliminating the use of arrests keeps Michael from receiving a sentence that is unjustified. To paraphrase Blackstone’s formulation, it is better that one hardened delinquent receive a sentence that is too light, than a juvenile capable of rehabilitation be treated too harshly.

            Additionally, previous arrests should not be considered under the other factors a judge weighs when contemplating a transfer to criminal court. Prior arrests aren’t considered during the sentencing phase of an adult’s trial, so they should not affect the sentencing of a juvenile.


           Courts should not consider arrests without convictions when deciding whether to transfer a juvenile case to criminal court. The practice violates the due process rights of the juveniles, does not meet the policy aims of § 5032, and there is no agreed plain language view of the phrase “delinquent record” on which the courts can agree.  Therefore, if protecting our juveniles from the horrors of the adult penal system is a national goal, siding with the Eighth Circuit and the D.C. Circuit may be the way forward.


[1] For purposes of simplicity, I will be using the shorter term “conviction” in place of the more technically correct civil/juvenile term “adjudication of delinquency,” as the court cases discussed herein tend to use the criminal court phrases “convicted” or “found guilty.” The Eighth Circuit explicitly made this same decision because, among other reasons, of the variety of nomenclature among the states with regard to juvenile systems. United States v. Juvenile LWO, 160 F. 3d 1179, 1182 n.4 (8th Cir. 1998).

[2] 18 U.S.C. § 5032.

[3] Id.

[4] 149 F. 3d 610, 613 (7th Cir. 1998).

[5] 160 F. 3d 1179, 1183 (8th Cir. 1998).

[6] United States v. Juvenile, 2017 U.S. Dist LEXIS 151370, p. 24 n.13 (E.D.N.Y. Sept. 7, 2017).

[7] 347 U.S. 497, 499 (1954). While Bolling talked about racial discrimination, it was a case about school students, thus indicating that minors also should have due process.

[8] United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994); 18 U.S.C. § 5032; Fed. R. Evid. 404(b); and United States Attorneys Manual (Criminal Resource Manual) §116

[9] Randie P. Ullman, Federal Juvenile Waiver Practices: A Contextual Approach to the Consideration to Prior Delinquency Records, 68 Fordham L Rev 1329, 1357-58 (2000).

[10] Wilson, 149 F.3d at 613.

[11] Id.

[12] LWO, 160 F.3d at 1182-1183.

[13] In Re Sealed Case, 893 F.2d 363, 368-369 (D.C. Cir. 1990).

[14] Id. at 365.

[15] Id. at 369.

[16] Id.

[17] Id.

[18] In Re Sealed Case, 893 F.2d 363, 369 (D.C. Cir. 1990).

[19] Id.

[20] Id. at 369-370.

[21] 160 F. 3d at 1183.

[22] Id.

[23] Id.

[24] Id.

[25] 893 F.2d at 367-368.

[26] Id.

Shot on the Wrong Side of the Border

Natalia Trotter, Associate Member, University of Cincinnati Law Review


As the Executive Branch turns towards increasing enforcement on the U.S.-Mexico border, permitting non-citizens to sue border patrol agents in cases of police violence could prove a useful tool for deterring the use of excessive force by federal entities.[1] Although border patrol officers are tasked with detaining aliens entering the country unlawfully, their job does not entail using excessive force against non-violent, unarmed immigrants. When the border patrol is involved in incidents of cross-border violence, agents should not be permitted to escape liability because of a judicial refusal to extend constitutional protections to persons injured on the Mexican side of the border. Since the Supreme Court held in Hernandez v. Mesa that a determination about whether a claim may be brought against a federal agent is antecedent to a constitutional analysis, the Fifth Circuit on remand should recognize a right of action for damages against federal officers and permit injured non-citizens to bring claims against border patrol agents.[2]

Facts of Hernandez v. Mesa

In June of 2010, fifteen-year-old Sergio Adrian Hernández Güereca and a group of his friends were playing in the “cement culvert that separates El, Paso, Texas, from Ciudad Juarez, Mexico.”[3] As a part of their game, the youth would run onto the U.S. side of the border, “up the embankment” to touch the fence barring entrance to the United States.[4] While they were playing, Jesus Mesa Jr., a U.S. Border Patrol Agent, arrived on the scene and detained one of Hernandez’s friends in United States territory.[5] Hernandez was able to make it back across the border without detention, but after Hernandez crossed into Mexico, Mesa took out his gun and shot him in the face, killing him.[6] During the investigation that ensued, the Department of Justice claimed that smugglers, attempting to cross the border, were throwing rocks at Mesa and he reacted in self-defense.[7] Although it is unclear whether or not rocks were actually hurled at Mesa, it does appear that Hernandez was not the source of the rocks and that he “was unarmed and unthreatening at the time” of the shooting.[8] Claiming self-defense, the DOJ and the attorney general’s office decided that there [was] insufficient evidence to pursue prosecution of the CBP agent for a federal homicide offense or for a federal civil rights violation.[9]

Legal Background of Hernandez

Although the DOJ and the prosecutor’s office failed to bring criminal charges against Mesa, Hernandez’s parents sued in civil court seeking damages based on the alleged violation of their son’s Fourth and Fifth Amendment rights.[10] While federal agents are generally protected from liability, Hernandez’s parents asserted standing to sue the federal border patrol agent for constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents.[11] In Bivens, the Supreme Court recognized that a cause of action could arise due to a federal agent’s violation of the Fourth Amendment.[12] Ignoring Bivens, the Fifth Circuit dismissed Hernandez’s Fourth and Fifth Amendment claims.[13] On hearing the case, the Supreme Court placed Bivens at the forefront of the discussion, claiming that the question of “whether the parents of the victim . . . may assert claims for damages against the agent under Bivens” was “antecedent” to the other constitutional questions presented.[14] Finding that Ziglar v. Abbasi limited the scope of applicability of Bivens, the Court refused to answer the Fourth and Fifth Amendment questions and remanded the case to the Fifth Circuit to decide if Hernandez’s claim still applied under Bivens.[15]

Attempting to limit Bivens as much as possible, the Court highlighted in Ziglar that “three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution.”[16] While Bivens addressed a claim against a federal narcotics agent for a Fourth Amendment violation of the search and seizure provision, Davis involved an administrative assistant who brought suit against a Congressman claiming gender discrimination as a violation of the Due Process Clause of the Fifth Amendment.[17] Carlson on the other hand involved an Eighth Amendment cruel and unusual punishment suit where a federal prison guard failed to provide the prisoner with his asthma medication.[18] These three cases represent the only instances in which the Court has extended the implied right of action to federal agents.[19]

Favoring a strong legislative role in determining federal entity liability, the Court in Ziglar created a two-part inquiry for deciding whether a case should fall under the limited implied right of action under Bivens.[20] First, a court must determine “whether a case presents a new Bivens context” claim based on factors such as officer rank, the constitutional question, the “extent of judicial guidance,” intrusion into the separation of powers, or other considerations not addressed in the three Bivens cases. Second, a court should decide whether “special factors,” would point to Congress, rather than the judiciary, as the proper entity to consider and weigh the costs and benefits of allowing a damages action to proceed.[21]

Legal Analysis of Federal Agent Liability

Since the case was remanded to the Fifth Circuit, the lower court must decide whether Hernandez extends Bivens to a new context and whether the judicial branch is best suited for determining liability. Although the Court in recent years has stated that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” the Fifth Circuit should still find in favor of extending federal liability to the situation in Hernandez.[22] First, the Fifth Circuit should conclude that Hernandez presents a new Bivens context claim. Although Hernandez and Bivens both involved Fourth Amendment questions, the facts of the two cases, along with the federal entities involved, are very different. In Hernandez, a border patrol agent shot a Mexican citizen across the border, while in Bivens, a federal narcotics agent conducted an unreasonable search and seizure of the plaintiff’s home. The extent of judicial guidance in both cases is different since search and seizure cases have been widely litigated while the Hernandez case presents a new constitutional inquiry. Similarly, the facts in Davis and the Eighth Amendment claim in Carlson are too different from Hernandez for that case to fit well into either context. Because of the disparities in constitutional claims, factual scenarios, and judicial guidance, the court should find that Hernandez presents a new Bivens claim.

If the court were to decide that Hernandez extends Bivens to a new context, it must then determine if any special factors bar the judiciary from determining that an implied right of action exists against the federal agents. Ziglar points to a number of economic and governmental concerns that must be considered when permitting claims against federal officials.[23] One special consideration highlighted by the court in Ziglar is the economic cost, including the litigation expenses, which the government would incur.[24] The economic factor in Hernandez is not so broad that the judiciary would be unable to properly address the question. Although Congress is better suited for analyzing cases where the federal government could incur huge liability if an implied right of action were permitted, Hernandez involves one suit of an individual family suing an officer. Although cross-border shootings do occur, their relatively rare frequency indicates that allowing a right of action against border patrol agents will not produce a heavy financial burden on the government. In addition to the economic aspect, another special factor pointed to in Ziglar is that the purpose of Bivens is to deter the officer, but not to create liability for superiors.[25] Hernandez fits into this context since the suit in Hernandez is brought solely against the individual officer and does not implicate the United States Border Patrol as a whole. A third special factor involves situations where the claims would call into question the formulation and implementation of a general policy.[26] This concern does not apply to Hernandez since it is not a general policy to allow border patrol agents to shoot unarmed, non-citizens on the Mexican side of the border. Rather than involving an entity-wide policy, the claim in Hernandez addresses individual unconstitutional action. Lastly, a special factor that would require congressional rather than judicial inquiry are situations of national security.[27] Unlike in Ziglar where the federal agency was addressing the aftermath of September 11, 2001, Hernandez did not implicate national security whatsoever. Rather, this case involved a single act of violence that did not threaten the United States in any way.[28] Therefore, the court should find that there are no special economic, policy, or national security factors barring the judicial determination to extend Bivens to Hernandez.

Policy Implications

Refusing non-citizens killed by border patrol on the Mexican side of the border the right to sue federal officers would leave families without any judicial recourse and do nothing to discourage abuse within federal law enforcement agencies. Although cases of cross-border violence are not often highlighted in the media, court documents indicated that “in a recent five-year span, border agents shot across the border at least ten times, killing a total of six Mexicans on Mexican soil.”[29] Since Mexican courts do not have jurisdiction to sue U.S. federal officers, a non-citizen family’s only recourse is to sue in the U.S. federal court system. If denied the right to pursue a claim, a family, such as the Hernandez family, would be unable to receive any damages for the loss of their family member. In the present case, if Mesa shot Hernandez on the U.S. side of the border, approximately fifteen feet from where he was actually killed, the family could have sued the officer in U.S. federal court. Basing a family’s access to relief on a few feet of distance takes the attention away from the act itself and places it on an imaginary line. In addition, protecting officers from liability, based solely on the location of the victim, provides an opportunity for agents to use excessive force against immigrants and escape paying damages. Far from advocating the use of proportional force, the lack of consequences could result in a greater number of cross-border shootings. The court, when deciding whether to extend Bivens to Hernandez, should take into consideration the implications for current affected families and the deterrence effect of tempering federal law enforcement action.


So as to provide families with access to justice and deter officers from using excessive of force, the Fifth Circuit should follow the steps in Ziglar and find that Bivens extends to the context presented in Hernandez and that the judiciary is the correct branch to determine federal agent liability. The court should provide non-citizens, injured by border patrol agents on the Mexican side of the border, with the right of action against federal agents.

[1] Executive Order: Border Security and Immigration Enforcement Improvements, The White House: Office of the Press Secretary (Jan 25, 2017)

[2] Hernandez v. Mesa, 137 S. Ct. 2003, 2004 & 2006 (2017) citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001).

[3] Hernandez 137 S. Ct. at 2005.

[4] Id.

[5] Id.

[6] Id.

[7] Geneva Sands, Federal Officials Close Investigation into the Death of Sergios Hernandez-Guereca, The United States Department of Justice, (Apr 27, 2012)

[8] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM)

[9] Geneva,

[10] U.S. Const. amend. IV; U.S. Const. amend. V.

[11] 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971).

[12] Id. at 391-392.

[13] Hernandez 137 S. Ct. at 2006.

[14] Id. at 2004 & 2006.

[15] Hernandez 137 S. Ct. at 2006; Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

[16] Ziglar, 137 S. Ct. at 1855.

[17] Bivens 403 U.S. at 389-390; Davis v. Passman, 442 U.S. 228, 231, 99 S. Ct. 2264, 2269 (1979).

[18] Carlson v. Green, 446 U.S. 14, 17, 100 S. Ct. 1468, 1471 (1980).

[19] Ziglar, 137 S. Ct. at 1855.

[20] Ziglar, 137 S. Ct. at 1859-1860.

[21] Id. at 1857-1859.

[22] Ziglar, 137 S. Ct. at 1857 quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009).

[23] Ziglar, 137 S. Ct. at 1856

[24] Id.

[25] Id. at 1860.

[26] Id.

[27] Id. at 1861.

[28] Id.

[29] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM)

Waiving Goodbye to Class Action Waivers

Maria Castro, Associate Member, University of Cincinnati Law Review

Employment arbitration agreements containing class and collective action waivers ensure individual arbitration of employees’ employment-related claims.[1] One issue that has arisen is whether an employer’s prohibition on pursing class and collective action claims violates an employee’s right to act in concert with other employees. In May 2017, the Sixth Circuit held that mandatory class and collective action waivers, as a condition of employment, violate the National Labor Relations Act (NLRA) and are therefore unenforceable.[2] This decision is in line with the Seventh and Ninth Circuit approaches to class action waivers.[3] However, the Fifth and Eighth Circuits have both found that class and collective action waivers are valid and enforceable under the Federal Arbitration Act (FAA).[4] The US Supreme Court granted certiorari to resolve this circuit split and to determine whether class action waivers violate the NLRA, or whether they are enforceable under the FAA. The Supreme Court should follow Sixth Circuit precedent and hold that mandatory class and collective action waivers are an unlawful violation of the NLRA. By prohibiting employees from collectively bringing suit against their employer, the interpretations of the Fifth and Eighth Circuits interferes with employees’ ability to level the playing field between them and their employer.

The Fifth Circuit: Class Action Waivers are Enforceable

In D.R. Horton, Inc. v. NLRB, the Fifth Circuit upheld enforcement of a class and collective action waiver provision that prohibited employees from “filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial.”[5] The employee in D.R. Horton sought to bring a collective action against his employer for unlawfully misclassifying him and other similarly situated employees as exempt from statutory overtime protections.[6] The employer argued that the arbitration agreement barred its employees from pursuing collective claims, but allowed for them to initiate individual arbitration proceedings.[7] In its decision, the Fifth Circuit found that (1) the policy considerations behind the NLRA did not override the policy considerations in the FAA and (2) class and collective action waivers do not violate employees’ substantive rights.[8]

The NLRA was enacted to protect the rights of employees and employers, encourage collective bargaining, and reduce harmful labor practices.[9] Under Section 7 of the NLRA, employees have the right to engage in concerted activities for the purpose of collective bargaining or other types of mutual aid or protection.[10] Through the NLRA, Congress intended to equalize bargaining power between employees and employers by allowing employees to band together to confront their employer.[11] The Fifth Circuit recognized that the NLRB and other circuits have held that Section 7 protects collective-suit filings as a form of concerted activity.[12] However, the Fifth Circuit ultimately found that these decisions did not give proper weight to decisions that have interpreted the FAA, finding that “arbitration has been deemed not to deny a party any statutory right.”[13]

The FAA was intended to prevent courts from treating arbitration agreements less favorably than other private contracts.[14] Under the FAA, arbitration agreements must be enforced according to their terms, unless the agreement violates grounds that exist at law or in equity for the revocation of any contract.[15] Creating a circuit split, the Fifth Circuit found that class and collective action waivers do not violate any substantive rights and therefore are not protected by Section 7 of the NLRA.[16] When reaching this conclusion, the Fifth Circuit analyzed whether the Rule 23 right to class action constitutes a substantive right protected by the NLRA.[17] The Fifth Circuit looked to previous Fifth Circuit decisions that have “characterized a class action as a ‘procedural device.’”[18] Accordingly, the court found that the use of class action procedures is procedural, not substantive, and therefore not protected by the NLRA.[19] As a result, the Fifth Circuit held that class and collective action waivers do not violate the NLRA and are therefore enforceable under the FAA.

The Sixth Circuit: Class and collective action waivers violate the NLRA

In NLRB v. AEI, the Sixth Circuit found that a mandatory arbitration agreement was unenforceable when it required its satellite technicians to waive their right to class or collective actions in both arbitral and judicial forms, as a condition of their employment.[20] When determining whether the class action waiver provision was enforceable, the Sixth Circuit rejected the Fifth Circuit’s analysis in D.R. Horton. The Sixth Circuit found that the question was not whether the policy considerations of one statute override the other.[21] Rather, the Sixth Circuit found that the NLRA and FAA are compatible with one another.[22]

According to the Sixth Circuit, “The NLRA prohibits the arbitration provision on grounds that would apply to any contractual provision, and thus triggers the FAA’s saving clause.”[23] The NLRA protects the right to engage in concerted activities for the purpose of collective bargaining. “Concerted activity” includes resorting to administrative and legal forums.[24] As a result, the Sixth Circuit found that mandatory arbitration provisions barring collective or class action suits are unlawful because “they interfere with an employees’ right to engage in concerted activity, not because they mandate arbitration.”[25] Under the FAA, any contract that violates an employees’ right to engage in concerted legal activity is unenforceable.[26] The Sixth Circuit then looked to whether the NLRA protected an employee’s right to utilize Rule 23. The Sixth Circuit found that the focus on whether Rule 23 was a substantive right was irrelevant because “[r]ule 23 is not a substantive right, but the Section 7 right to act concertedly through Rule 23, arbitration, or other legal procedures is.”[27]

Mandatory Class and Collective Action Waivers Violate Employees’ Rights

Arbitration is favored in the legal system for several reasons. Employers commonly favor arbitration agreements due to the high costs associated with litigation. Likewise, the FAA also favors arbitration because it is often a quicker, cheaper, and more efficient method of dispute resolution. In addition, courts have been favorable towards arbitration agreements because arbitration helps to clear their dockets. The issue here is not whether mandatory arbitration policies are valid; that issue has already been settled.[28] Rather, the issue here is whether employers may eliminate employees’ ability to pursue collective-suit filings, through either litigation or arbitration. Courts have held that a “lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is ‘concerted activity’ under Section 7” of the NLRA.[29] The NLRB and the Sixth, Seventh, and Ninth Circuits recognize that class and collective action lawsuits help to equalize employee bargaining power. This is precisely the goal that Congress had in mind when it passed the NLRA.[30]

Class action lawsuits are an employer’s worst nightmare. The cost of a class action lawsuit is enough to pressure an employer into settling any claim, regardless of its merit. Otherwise, a company could go out of business just from the high cost of legal fees associated with a collective suit. Discovery in a class action suit is time consuming and extremely expensive. An individual claim in arbitration can be resolved much quicker. A class and collective action waiver eliminates the risk that an employer would have to potentially defend against an entire class of individuals, rather than just against a single claim. Although there are many benefits to employers in prohibiting employees’ collective suits, such prohibitions can be detrimental to an employee’s ability to confront his or her employer.

Collective lawsuits help to level the playing field between employees and their employer. Historically, class actions have “proved critical to the protection of rights of employees, consumers, medical patients, racial or ethnic minorities, and others who lack the resources to litigate individual claims.”[31] Without the availability of a class or collective action, employees lose a form of leverage against employers that violate multiple employee rights. The possibility of a class or collective action suit can discourage an employer from continuing a practice that violates its employees’ rights because the risk of a class or collective action is too high. In addition, collective filing suits enable employees who may not be able to afford to sue individually to be able to pursue claims against their employers. Some claims are not worth pursuing on an individual basis because the cost of pursuing them may far outweigh the potential remedies. Plaintiff’s employment attorneys often work on a contingency basis and may be discouraged from taking cases that are unlikely to be profitable on an individual basis. Collective suit filing is also an efficient method of resolving many claims at once. It avoids inconsistent judgments and saves judicial resources.[32]


If an employer barred class action through litigation, but allowed for collective action through arbitration, then this type of provision should be enforceable because it would still allow for an employee to engage in concerted activity through arbitration. However, under the Fifth and Eighth Circuit rulings, employers may deny employees the ability to act concertedly through both forums, arbitral and judicial. Under this approach, employees may not join together to confront their employer through any legal process, and are forced to pursue all employment-related disputes on an individual basis. As a result, class action waivers violate an employee’s Section 7 right to engage in concerted activity. Therefore, the Supreme Court should uphold Sixth, Seventh, and Ninth Circuit precedent and find that class action waivers violate the NLRA and are therefore unenforceable under the FAA.

[1] D.R Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).

[2] Natl. Lab. Rel. Bd. v. Alt. Ent., Inc., 858 F.3d 393 (6th Cir. 2017).

[3] Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

[4] D.R Horton, 737 F.3d at 344; Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).

[5] 737 F.3d at 355.

[6] Id. at 349.

[7] Id.

[8] Id. at 358.

[9] 29 U.S.C. § 151.

[10] Id. at § 157.

[11] D.R Horton, 737 F.3d at 356.

[12] Id.

[13] Id. at 357.

[14] Id. at 358.

[15] 9 U.S.C. § 2.

[16] D.R Horton, 737 F.3d at 357.

[17] Id.

[18] Id (quoting Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 643 (5th Cir. 2012).

[19] D.R Horton, 737 F.3d at 357.

[20] Alt. Ent., Inc., 858 F.3d at 411.

[21] Id. at 402.

[22] Id.

[23] The FAA’s saving clause provides that arbitration agreements are enforceable unless they violate any “grounds as exist at law or in equity for the revocation of any contract.” Alt. Ent., Inc., 858 F.3d at 406.

[24] Id. at 402.

[25] Id. at 403.

[26] Id.

[27] Id.

[28] 29 U.S.C. § 2.

[29] Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011).

[30] Alt. Ent., Inc., 858 F.3d at 402.

[31] Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 Wm. & Mary L. Rev. 1, 12 (2000).

[32] Id. at 29-30 (“Class actions have been praised widely for a variety of attributes including efficiency, improving access to the litigation system, and serving the public interest. In terms of efficiency, it is claimed that they allow issues involving multiple persons or institutions to be resolved more cheaply and expeditiously. As to access, numerous courts including the Supreme Court have emphasized that the class mechanism can make possible suits which otherwise would have been logistically or economically impossible.”).

The Legality of Trump’s Transgender Policy

John Bernans, Associate Member, University of Cincinnati Law Review

Title VII of the Civil Rights Act is a federal statute that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.[1] Recently, President Trump indicated that he planned to implement a ban on transgender individuals serving in our country’s military. The Department of Defense and the Department of Homeland Security have generally prohibited openly transgender individuals from serving in the United States military and authorized the discharge of such individuals.[2] Courts interpreting Title VII of the Civil Rights Act have held that sexual orientation is not a protected class under the statute.[3] Historically, courts believed that sex discrimination did not include discrimination based on an individual’s sexual orientation.[4] Because of this, many of the federal courts’ prior decisions have held that one cannot seek relief or a legal remedy for a sexual orientation discrimination  claim brought under Title VII. Sexual orientation discrimination claims, partly because of President Trump’s new policy, have come to the forefront in recent months. Two cases of note, Hively v. Ivy Tech Community College and Evans v. Georgia Regional Hospital are important because they show a split in circuit decisions. Analyzing these cases, legislative history, and a possible Supreme Court ruling will all play key roles in determining the validity of President Trump’s ban on transgender military personnel. This plan is controversial and based on Supreme Court precedent, it is also illegal.

Hively v. Ivy Tech Community College

The analysis of the most recent sexual orientation cases begins with Hively v. Ivy Tech Community College. In this case, an adjunct professor brought suit against the community college alleging that she was denied fulltime employment and promotions based on her sexual orientation.[5] The case went to the Seventh Circuit, where the court rejected her claim as beyond the scope of Title VII.[6]

Rehearing the case en banc, the Seventh Circuit looked to define what it meant to discriminate on the basis of sex and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.[7] In holding sexual orientation was in fact covered under Title VII, the court used Oncale[8] as their guiding light.[9] The court saw no justification in the statute or their precedent for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.[10] Hively alleges that if she had been a man marrying a woman and all other character factors had been the same, Ivy Tech would not have refused to promote her and would not have fired her. In addressing the gender conformity argument, the court stated, “Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”[11] The court concluded by stating that it would require “considerable calisthenics to remove ‘sex’ from ‘sexual orientation.”[12] With the logic of the Supreme Court and common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, it persuaded the court to overrule their previous holding in Hively.[13]

Evans v. Georgia Regional Hospital

While the Hively en banc court may have ruled sexual orientation is actionable under Title VII of the Civil Rights Act, many courts follow the reasoning the first Hively court used. The Eleventh Circuit followed this logic in Evans v. Georgia Regional Hospital. Jameka Evans, a hospital security guard, alleged she was harassed by her supervisor, denied promotions, and punished because her status as a gay female did not comport with her employer’s gender stereotypes.[14]

In its opinion, the Eleventh Circuit relied heavily upon stare decisis. The court stated that binding precedent in the matter of sexual orientation foreclosed an action under Title VII.[15] In their reasoning, the court relied on Blum v. Gulf Oil Corp.[16] The Blum court held that a discharge for homosexuality is not prohibited under Title VII and the Supreme Court had never squarely addressed whether Title VII prohibits sexual orientation discrimination.[17] The court went on to list a case from almost every circuit that held sexual orientation is not covered under Title VII.[18] The court reasoned that “sex” and “sexual orientation” are different and sexual orientation does not fall under the scope of Title VII. Distinguishing the Evans case from cases such as Price Waterhouse, the court explained that in order to overturn circuit precedent, a decision by the Supreme Court must be “on point, or contrary” to the case and the Eleventh Circuit did not believe that Price Waterhouse applied.[19] Based on the binding precedent and prior case law, the Eleventh Circuit affirmed the dismissal of Evan’s sexual orientation claim.

The Legality of the Transgender Ban

The legality of President Trump’s transgender military ban will be determined based on the manner in which the plaintiffs bring their claim. If a claim against the transgender ban is brought under the gender non-conformity concept, the Court will deem the plan to be illegal. If the plaintiffs bring their action using a sexual orientation, there is not much precedent to support them. Most circuits have ruled that Title VII does not cover sexual orientation, making it difficult for the Supreme Court to say otherwise. However, this is not the most likely route for the plaintiffs to pursue. For the purposes of this article, it is safe to assume that potential plaintiffs would bring their claim under a gender non-conformity line of reasoning.

 The Supreme Court has affirmatively stated that gender non-conformity arguments are cognizable under Title VII.[20] Price Waterhouse was the first to hold that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination, instead of sexual orientation discrimination.[21] In analyzing our society’s views around sex in America, it reveals that modern America views heterosexuality as the norm and other forms of sexuality as odd or strange. In the case of the transgender ban in the military, this would be even more non-conformity than homosexuality. The ban directly targets an individual who not only does not conform to gender norms, but they want to represent themselves as the opposite gender. These individuals are being discriminated against because they do not conform to the idea of what we think conformity to your gender assignment should be. The military is no different from any other employer in that they cannot discriminate based upon an individual’s sex. This is exactly what the military would be doing if it could be proved that the ban penalizes individuals for their gender non-conformity.

As the court stated in Evans, a claim for legal relief comes down to alleging the proper facts to prove gender non-conformity.[22] Although the Court in Evans held that Evans’s claim for relief was more sexual orientation than gender non-conformity, the court did state that if she had framed the facts differently, her case would have been heard.[23] Like the Hively court, Evans stated that discrimination against a transgender individual was in fact sex-discrimination.[24] However, plaintiff must be cautious when alleging discrimination based on gender non-conformity. Multiple courts have held that gender non-conformity claims are a way to mask plaintiff’s real claims of sexual orientation discrimination. The Evans court however took a major step forward however when they held that gender non-conformity is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct avenue for relief.[25] In terms of President Trump’s transgender ban, plaintiffs bringing a suit would need to allege proper facts to show that they are being discriminated against because they do not conform to a male or female stereotype. For transgender military service individuals, these sets of facts and allegations should provide a claim for legal relief.

            One important aspect of President Trump’s transgender ban that needs to be considered is the President’s power as Commander-in-Chief. Constitutional issues, specifically Article II issues, are something that must be considered when analyzing the ban. Under Article II, the president is the commander of the armed forces.[26] The President is entrusted with highly sensitive information and has the knowledge to make critical military decisions. Because of this knowledge, the President has significant discretion when it comes to creating policies concerning national security. However, when it comes to the transgender ban, this policy does not fall within the President’s broad discretion. However broad the discretion is, the President still cannot discriminate in the military on the basis of things like race or sex. Because the ban discriminates on the basis of sex, the President will not be able to use his Article II powers.

In the short term, analyzing a claim against President Trump’s transgender ban in the military will be determined by how the plaintiffs frame the issue and how the court decides to look at it. Whichever route the plaintiff’s take in their claims, there is a chance that the court will refuse to provide protection. Potential plaintiffs must frame their discrimination carefully and allege facts that clearly allege discrimination based on gender non-conformity. The transgender policy involves discrimination on the basis of sex. Sex discrimination can occur when one is discriminated against for not conforming to the gender ideals of our society. The plaintiffs in a potential case must allege proper facts to support their non-conformity suit. If plaintiffs do this and bring a claim against the transgender ban, it is likely that the Court will strike the ban for violating Title VII.


President Trump’s transgender military ban, if analyzed through the lens of gender non-conformity, will likely be violate Title VII. The transgender ban directly targets individuals because they do not conform to society’s view of what a male or female should act or look like. Although sexual orientation claims are not typically actionable under Title VII, this ban would be hard not to be viewed through the conformity perspective. The Court has ruled in multiple cases that gender non-conformity discrimination is discrimination based off of sex and that is something that is protected under Title VII.

[1] Civil Rights Act of 1964 §7

[2] Memorandum for the Secretary of Defense, Military Service by Transgender Individuals

[3] Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255-1257 (11th Cir. 2017)

[4] Hively v. Ivy Tech Community College, 853 F.3d 339, 345 (7th Cir. 2017)

[5] Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)

[6] Hively v.  Ivy Tech Community College, 830 F.3d 698, 699 (7th Cir. 2016)

[7] Hively v. Ivy Tech Community College, 853 F.3d 339, 343 (7th Cir. 2017)

[8] Held that same sex harassment in the workplace was actionable under Title VII of the Civil Rights Act.

[9] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)

[10] Hively, 853 F.3d at 344

[11] Id. at 346

[12] Id. at 350

[13] Id. at 351

[14] Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1251 (11th Cir. 2017)

[15] Id.

[16] Id. at 1255

[17] Id.

[18] Id. at 1256

[19] Id. at 1256

[20] Price Waterhouse v. Hopkins, 490 U.S. 228, (1989)

[21] Hively, 853 F.3d at 342

[22] Evans, 850 F.3d at 1253

[23] Id. at 1254

[24] Id.

[25] Id. at 1249

[26] Article II, United States Constitution